On January 5, 2022, France’s top civil court ruled that the question of jurisdiction in the case opposing pharmaceutical company Roche and the French Competition Authority (“FCA”) in respect of the communication campaign led by the FCA in the Avastin/Lucentis case was particularly complex, and decided to refer it to the Tribunal des conflits to be settled. According to Roche, following its 2020 decision, the FCA led an aggressive and unprecedented communication campaign on the case, going beyond the scope of its usual practice.
On September 9, 2020, the FCA found that pharmaceutical companies Novartis, Roche, and Genentech had abused their collective dominant position on the market for the treatment of age-related macular degeneration (“AMD”) by spreading misleading and sometimes alarmist information regarding the risks related to the use of Avastin, a cheaper product competing with Lucentis, for the treatment of AMD (the “Decision”). Novartis, Roche, and Genentech were fined €444 million.
Roche then lodged an appeal on the merits of the Decision with the Paris Court of Appeals, which is still pending.
The FCA’s Name and Shame Practices at issue
The heart of the issue lies not with the substance of the case, but with the FCA’s decision to communicate heavily on the Decision after its publication while the appeal on the merits was still pending. Following publication of the Decision, the FCA launched a significant communication campaign across all media: press, social networks (Twitter, LinkedIn), video platforms (YouTube), and conferences as well as podcasts, and wrote to the French professional organization of pharmaceutical companies (“LEEM”) in order to raise awareness and as a consequence potentially encourage private damages actions.
Roche’s Appeal Before the Paris Court of Appeals
Roche took issue with the FCA’s communication, claiming that it was disproportionate and misleading, and requested that the FCA cease such practices. Upon refusal from the FCA, Roche lodged an appeal with the Paris Court of Appeals under summary procedure to request that the FCA stop this communication campaign.
Roche considered that the FCA’s communication campaign was disproportionate as it was across all media and still ongoing nearly four months after the Decision was published, misleading in that it misrepresented the price difference between the competing drugs, Avastin and Lucentis, and consequently, the damage to public finances that could result from the alleged infringement and omitted key information, such as the fact that the practices had ended in 2013. In addition, Roche considered that the communication was in breach of the presumption of innocence as the appeal of the merits of the Decision was still pending, which the FCA failed to mention. Finally, Roche claimed that the FCA’s communication strategy breached the College’s duty of discretion and reserve.
While Roche decided to seize the civil courts on the basis that such communication from the FCA constituted a publication injunction in disguise, and therefore, an additional penalty, the Court of Appeals dismissed the request on May 12, 2020 on the basis that civil courts had no jurisdiction to rule on the matter, noting that the FCA’s communication campaign derived either from its general communication policy or from its mission to protect competition and consumer welfare and consequently did not fall within the jurisdiction of civil courts, thereby referring Roche to the administrative courts.
Moving On Up – The Cour de cassation’s Ruling
Roche appealed the Court of Appeals’ ruling before the Cour de cassation, which considered that the question of jurisdiction in this case was of a complex nature and decided to refer the case to the Tribunal des conflits to settle the question of jurisdiction.
On the one hand, the Cour de cassation noted that the FCA’s communication could be interpreted as forming part of its general communication policy, seeking to inform the general public of the actions taken to ensure the appropriate functioning of the market, for which only the administrative courts have jurisdiction. On the other hand, the Cour de cassation acknowledged that the litigious communication only related to the Decision and could thus also be interpreted as an additional sanction in the form of a publication injunction for which the civil courts have jurisdiction.
Limits to the FCA’s Name and Shame Policy
These proceedings raise the question of how extensively the FCA may communicate on a case after publication of a decision. The underlying question that the Tribunal des conflits will have to settle is the extent to which such communication, which postdates the Decision and is solely focused on the case at hand, is inseparable from said Decision and therefore can be said to constitute an extension of such Decision. The outcome of this case is expected to be closely monitored and will be instrumental to undertakings seeking to limit reputational damage.
 Cour de cassation, judgment of January 5, 2022 (No. 21-16.868).
 FCA, Decision No. 20-D-11 of September 9, 2020 regarding practices implemented in the treatment of age-related macular degeneration sector.
 Paris Court of Appeals, ruling of May 12, 2021 (No. 21/02163).