The main Antitrust trends in the Pharmaceutical sector in Spain in 2021

By Pablo González de Zárate and María Allendesalazar

The pharmaceutical sector is currently one of the main areas that competition authorities are focusing on.

Given this, the Antitrust team at Ramón y Cajal would like to share with you the main trends observed in this area during 2021 in Spain.

Agreements between undertakings - Article 1 LDC / Article 101 TFUE

As regards horizontal agreements, we would highlight the significant scrutiny by the Spanish Competition Authority (CNMC), of any type of cooperation (UTEs (similar to joint ventures), subcontracting agreements, etc.) between competitors in public tenders for the supply of medicines or medical devices.

As regards vertical agreements, the CNMC is increasingly interested in monitoring resale price maintenance of medicines and parapharmaceutical products by manufacturers.

Abuse of a dominant position - Article 2 LDC / Article 102 TFUE

Regarding undertakings with a dominant position, the CNMC is focused on excessive pricing practices, as well as on the use of judicial mechanisms of intellectual property law to artificially delay the market entry of competing medicines.

Merger control 

Most of the mergers in the pharmaceutical sector reviewed by the CNMC were triggered by the market share threshold notification. Following the EU trends, new elements of analysis are being introduced in its substantive assessment, such as:

• the possible impact on the parties' innovation (R & D) activities; or
• possible anti-competitive effects arising (in addition to horizontal or vertical relationships between the parties) from any complementary relationships between the parties to the concentration (portfolio effects).

Click here for a more comprehensive overview of the main news for 2021.