On July 14, 2020, the Commission invited interested parties to comment on commitments offered by Aspen Pharma.[1] The commitments came following a Commission investigation opened on May 15, 2017 into excessive pricing for six life-saving cancer medications that Aspen purchased in 2009.[2]

Following the investigation, the Commission had serious concerns that Aspen may have abused a dominant position in a number of national markets.[3]

In 2012, Aspen began raising prices of these medications, often by several hundred percent. The Commission’s investigation found that between July 2012 and June 2019 Aspen’s prices exceeded relevant costs by almost 300% on average and were more than three times higher than the average when looking at a number of similar pharmaceutical businesses. The investigation did not find any legitimate reasons for such high prices: the medications had been off-patent for 50 years—so any R&D investments would have been fully recouped—and the price increases were disproportionate to any rises in cost. Aspen has also not made any material improvements to the medicines or their distribution that would justify such price increases.

Although Aspen stated that it did not agree with the Commission’s findings, they proposed commitments to reduce the prices of the six medications by an average of 73% throughout the EEA.[4] The reduced prices would be the maximum Aspen can charge for the following 10 years (effective as of October 2019), with one review after five years to allow for the reflection of any changes in Aspen’s direct costs. Aspen also pledged to ensure a continued supply of the medications for the next five years.[5] Unusually, Aspen will also retroactively reimburse amounts paid in excess of the reduced prices by a number of health bodies in 25 EU Member States, between October 1, 2019 and the commitments implementation date.[6]

The Commission has launched a public consultation on the proposed commitments, inviting interested parties to submit their views by September 15, 2019. This is the first case in which the Commission has alleged that excessive pricing alone, without being combined with any other exclusionary practices, could amount to an abuse of competition law.[7] This consultation is the first of its kind and will inform the Commission’s decision on whether the commitments will be sufficient to remedy the harm caused.

[1]      Communication from the Commission published pursuant to Article 27(4) of Council Regulation (EC) No. 1/2003 in Case AT.40394 – Aspen, OJ C 233/06 (15.7.2020).

[2]      The medications concerned—sold under the brand names: Alkeran, Leukeran and Purinethol—are used in the treatment of leukemia and other hematological cancers.

[3]      The Commission did not include Italy in its investigation as the Italian Competition Authority adopted a decision in 2016 for the Italian market ordering Aspen to reduce its prices.

[4]      These prices are maximum prices and Aspen will remain free to apply lower prices.

[5]      For a second five-year period, Aspen will also continue supplying the medications unless it chooses to discontinue; if so, Aspen must: (i) inform the relevant Member State authorities at least one year in advance; and (ii) make the medications’ marketing authorizations available to any third-party purchaser (and maintain the authorizations until it has found a purchaser).

[6]      As the Commission has not issued a full prohibition decision, health bodies lack a basis on which to claim compensation going back to the beginning of the conduct in 2012, although any findings the Commission may set out in the commitments decision would provide strong, non-binding guidance to national courts.

[7]      By contrast, in its investigation into Gazprom’s activities, the Commission imposed commitments intended to put an end to practices that amounted to market partitioning in addition to ensuring competitive prices. See Commission Press Release IP/18/3921, “Antitrust: Commission imposes binding obligations on Gazprom to enable free flow of gas at competitive prices in Central and Eastern European gas markets