On April 22, 2020, the Commission conditionally approved the joint venture between Mylan and Upjohn, Pfizer’s off-patent branded and generic medicines division, following a Phase I review.[1] The transaction follows a recent stream of large pharma and healthcare transactions approved by the Commission, including the unconditional clearance of Bristol-Myers Squibb’s acquisition of Celgene,[2] and conditional clearances of AbbVie’s acquisition of Allergan,[3] and GSK’s acquisition of Pfizer’s Consumer Health Business.[4]

Mylan is a leading generic pharmaceutical supplier in the EEA. Upjohn focuses on the sale of off-patent branded originator pharmaceuticals, including well-known brands such as Viagra, Xanax, and Lipitor, as well as generics. The Commission’s investigation focused on national markets for genericized medicines based on the same chemical molecule indicated for a specific therapeutic use. On this basis, the Commission identified concerns in 12 molecules[5] in several EEA countries (resulting in 36 molecule-country combinations) related to cardiovascular, genito-urinary, musculoskeletal, nervous system and sensory organ treatments areas. In each of these segments, the parties competed closely, had high market shares, and faced insufficient constraint from the remaining competitors.

To address the Commission’s concerns, Mylan offered to divest a generics portfolio reflecting the 36 molecule-country combinations at issue, removing the entire overlap between the parties in the national markets in question. The divestment package included marketing authorizations, contracts and brands, and transitional manufacturing and supply arrangements, consistent with the Commission’s pharma remedy practice.[6]

The Commission’s assessment of the overlaps between the parties at the molecule level is consistent with its previous practice in transactions involving generic medicines such as Teva/Allergan,[7] Mylan/Abbott EPD-DM,[8] and Mylan/Meda,[9] as is the requirement to divest the affected molecules in the relevant countries in question, rather than at the EEA level. Despite the Commission’s clearance, the COVID-19 outbreak and associated delays in the regulatory review process have pushed back closing of the deal to the second half of 2020.

[1]      Mylan/Upjohn (Case COMP/M.9517), Commission decision of April 22, 2020, not yet published.

[2]      BMS/Celgene (Case COMP/M.9294), Commission decision of July 29, 2019, as reported in our October 2019 EU Competition Law Newsletter.

[3]      AbbVie/Allergan (Case COMP/M.9461), Commission decision of January 1, 2020.

[4]      GlaxoSmithKline/Pfizer Consumer Healthcare Business (Case COMP/M.9274), Commission decision of July 7, 2019, as reported in our July 2019 EU Competition Law Newsletter.

[5]      Alprazolam, atorvastatin, doxazosin, eletriptan, eplerenone, gabapentin, latanoprost, tatanoprost/timolol, pregabalin, sildenafil (for pulmonary arterial hypertension), venlafaxine, and ziprasidone.

[6]      See e.g., Mylan/Abbott EPD-DM (Case COMP/M.7379), Commission decision of January 28, 2015; and Mylan/Meda (Case COMP/M.7975), Commission decision of July 20, 2016.

[7]      Teva/Allergan Generics (Case COMP/M.7746), Commission decision of December 20, 2017.

[8]      Mylan/Abbott EPD-DM (Case COMP/M.7379), Commission decision of January 28, 2015. See our Q 2 2015 EU Competition Quarterly Report.

[9]      Mylan/Meda (Case COMP/M.7975), Commission decision of July 20, 2016.