In an order dated May 12, 2021, the Paris Court of Appeals ruled that it did not have jurisdiction to rule on Roche’s request for injunctive relief against the French Competition Authority (“FCA”), who had shared videos related to the case on social media and sent a letter to a pharmaceutical trade association in the aftermath of the publication of its prohibition decision..
On September 9, 2020, following a five year-investigation, the FCA imposed a total fine of €444 million on Novartis, Roche and Genentech for abusing their collective dominant position in the market for the treatment of age-related macular degeneration or “AMD” (the “Decision”). First, the FCA found that
Novartis had unduly disparaged Avastin, a cancer treatment drug marketed by Roche which was administered “off label” by a number of doctors to treat AMD, in order to favor the use of its own drug Lucentis. Second, the FCA held that Novartis and Roche had spread alarmist claims in order to delay the public authorities’ initiatives to regulate the use of Avastin for AMD treatment. The Decision is currently under appeal.
Following the publication of the Decision and of the corresponding press release, the FCA shared two short videos (one in French and one in English) summarizing the key features of the case on various social media. On September 17, 2020, Roche required the FCA to take down the videos, to no avail. On January 5, 2021, the FCA contacted a pharmaceutical trade association by letter to draw its attention to the Decision.
Roche’s application for a summary procedure
On February 5, 2021, Roche filed an application for interim measures before the Paris Court of Appeals by which it asked the Court to order the FCA to stop all Decision-related publications. Alternatively, Roche sought to have the FCA mention the appeal pending against the Decision in all relevant publications, and to be prohibited from engaging in any kind of targeted communication with third parties regarding the Decision.
Roche’s request was based both on articles L. 464-8 and R. 464-22 of the French Commercial Code, which allow the addressees of an FCA decision to submit an application requesting a stay of enforcement, and on articles 834 to 837 of the French Civil procedure Code, which confer a general power on civil courts to take remedial actions in order to halt manifestly unlawful actions or to prevent imminent harm.
According to Roche, the FCA’s communication campaign amounted to an additional sanction devoid of any legal basis. In accordance with article L. 464-2 of the French Commercial Code, the FCA could have ordered that (part of) the Decision be published, e.g., in national newspapers. Instead, the FCA took the initiative to advertise the Decision by itself – even though this was not provided for by the Decision and had not been debated during the adversarial proceedings before the FCA.
Roche further argued that the FCA’s communication campaign was disproportionate, thus causing serious and irreparable harm to its interests and violating its right to the presumption of innocence. According to Roche, the campaign was particularly far-reaching as it was conducted on several social media (Twitter, LinkedIn, YouTube) and continued for over four months after the issuance of the Decision. Moreover, the presentation made in the videos was likely to jeopardize the general public’s ability to gain a proper understanding of the Decision. In particular, the FCA communications did not mention the appeal pending against the Decision.
Finally, Roche claimed that by engaging in this communication campaign, the FCA had breached its duties of discretion and restraint.
The Paris Court of Appeals’ order
The Paris Court of Appeals rejected Roche’s application on the grounds that (i) Roche was in fact not asking for a stay of enforcement of the Decision, and that (ii) the Court had no jurisdiction to grant interim relief. Specifically, the Court considered that the FCA’s communication campaign did not seek to “enforce” the Decision, and could not be considered as an additional sanction either. The Court stated that the FCA’s communication campaign was “severable” from the Decision, and that consequently any legal action against it should have been filed before the administrative courts.
The case raises the question of whether companies targeted by prohibition decisions in high profile cases have an effective judicial remedy to challenge the breadth and language of FCA communication campaigns going beyond the usual press release. While injunctions to publish a decision imposed pursuant to article L. 464-2 of the French Commercial Code constitute the outcome of an appealable adversarial process, it appears that no adversarial debate is required when the FCA takes the matter of publicity into its own hands.
It remains to be seen whether this question will be clarified in the future.
 Paris Court of Appeals, order of May 12, 2021, no. 21/02163, available at https://www.autoritedelaconcurrence.fr/sites/default/files/appealsd/2021-05/dmla_ ordo_12mai21_0.pdf.
 Decision 20-D-11 of September 9, 2020 regarding practices implemented in the treatment of Age related macular degeneration (AMD) sector.