The GSK France Decision of March 2007 Outline of the presentation 2. Predation Test 3. Application of the test A brief history of the case
• July 2000: Flavelab refers the case to CC, asks for interim measures
• November 2000: CC does not grant interim measures • December 2001: Flavelab goes bankrupt • April 2002: Flavelab acquired by Panpharma
– 2003: Complaint withdrawn – CC proceeded ex officio
• July 2004: Statement of objections
– 2006: first hearing, supplementary SO, final hearing
• March 2007: Decision on the merits, fining GSK France
• Paris Court of Appeal's judgement expected early 2008 Products
• Anti-infective drugs (“J” in the ATC classification) • Sold (almost) only to hospitals (bidding markets)
– Community market not involved
• Market A: Injectable Aciclovir (ATC: J05A)
• Market B: Injectable cephalosporins 2nd generation
– Prevent infections during surgical operations– Cefuroxime and Cefamandole– Not disputed
Market A: Aciclovir Market B: Injectable cephalosporins Market size
≈10 m€ Market size in 1999 and 2000
≈ 2m€ in 99 and 00 Injectable Zovirax® GSK: Zinnat® since 1983 Lilly: Kéfandol® Antitrust definition of markets and position of the firms
• Market A: No substitute for Injectable Zovirax® according
to the regulator and hospitals' pharmacists
– Market share: 90% in 2000, 80% in 2001– Supposedly protected until 2002 – Merck's entry late 1999 (around 10% in 2000)
• Market B (Lilly and GSK)
– Definition is not disputed– No dominant position on this market
TIMELINE Market A: Zovirax® protection extended until Sept 2002 Sept 99: Entry Merck Sept 02 Entries: Arrow No patent litigation Dakota-Pharm, Ggam Flavelab Entry → Panpharma litigation Market B: Zinnat® protected until May 1999 Predation period: 1999-2000 Practices
• 1999-2000: below cost pricing on market B
– Zinnat® purchased from the Adechsa company– Retail prices < purchase prices (PP)– Purchase prices computed from invoices net of all
– 12 markets (hospitals, dosage) in 1999, 29 in 2000– Selective price cuts: prices below cost when faced to
• Bundled rebates: special prices conditioned to the joint purchase of Zinnat® and Zovirax®
– 4 instances in 1999
➢ Price > ATC: ok (but exceptional circumstances)
ATC > Price > AVC: burden of proof on CC
– Multiple indicators: hard evidence, selective price cuts,
supplementary practices, likely recoupment, fact-based
theory of harm (e.g. Vulnerable prey, etc.)
AVC > Price: burden of proof on defendant
– defendant can rebut presumption by proving
recoupment ex ante impossible (low entry barriers),
perishable goods, learning by doing, switching cost.
Standard of proof suggested by CC = same as Motta (2004) to be confirmed by the Court of Appeal Relevant cost benchmark
• GSK: Drug purchased from a unit of the same group, transfer
prices within a group, no economic meaning
• CC: There are only two possibilities
1. Subsidiary company (GSK France) is held liable
● Competitive benchmark = maximization of the short-
2. Parent company (UK group, 2nd-largest drug company
● Competitive benchmark = maximization of the short-
Liability and competitive benchmark
• CC considered GSK France liable
– Internal organization and decision process of the firm:
• “business unit” dedicated to hospital drugs, with a
– The subsidiary company claimed that “no other company in the group was concerned by the practices”
Once a firm is considered liable, one should use its costs.
Purchase price (PP) = lower bound of AVC AVC (>PP) also include distribution costs (marketing, etc.)
PP effectively paid (invoices), quantity-dependent
Ex ante / Ex post
• GSK: CC should dismiss instances with Bid = PP
• CC: Since purchase prices are falling, ex post test conservative Bid for year (t+1) ≤ PP (t+1) < PP (t)
– GSK did not explain how expectations are formed, so PP(t)
– PP(t+1) follows from retroactive rebates that cannot be
Price analysis at which level?
• GSK: CC should consider average prices across all hospitals • CC: exclusion occurs at the hospital level. Bids at each
invitation to tender relevant, because of selective price cuts
• GSK: contests selective price cuts • CC:
– This is only an indicator (makes predation less costly) – Large differences in the bids depending on competitive
pressure (can be anticipated depending on the wording of
Bids with comp. < PP(n) < PP(n+1) < Bids without comp. Link between markets A and B
• GSK : contests the link
– Same seller: GSK France (hospital business unit) – Same buyers (hospitals) buy Zinnat® et Zovirax® – Bundled rebates in 1999 – Rationale for predation in (small) market B: deterring
generic drug companies from following Merck into (large)
• Same as in Akzo: the incumbent prices below cost in the
small market to deter ECS from entering its core market
Theories of harm (1/2)
• Threats of entry in 1999 in spite of patent's extension
• In 1999, 7 (3) generic drug companies had regulatory approvals to enter market A (B)
• Merck: small-scale entry on market A in 1999, but 1m€
• GSK was unsure about the outcome of a patent
litigation, did not challenge Merck in court
• Build a reputation of aggressiveness [Kreps and Wilson, 1982]
– Two types of incumbent: tough/weak, 2 markets, 2 periods
– After entry on market B at T=1, I has incentives to prey to avoid entry
on market A (deter entry or discipline an entrant)
TIMELINE Market A: Zovirax® protection extended until Sept 2002 Sept 99: Entry Merck Sept 02 Entries: Arrow No patent litigation Dakota-Pharm, Ggam Flavelab Recoupment Entry → Panpharma litigation Market B: Zinnat® protected until May 1999 Predation period: 1999-2000 Theories of harm (2/2)
• CC also mentions a possible financial predation scenario
• Common story: I sacrifices short-run profit to manipulate E’s
profit expectations, distort entry decisions, and recoup later
– Sacrifice is impossible to check look for short-run losses– Conservative test
• Reminder: Since P<AVC, CC has not the burden of establishing such a theory; the defendant has to prove it is manifestly impossible and to give an objective justification Average Price Zinnat® 1.5g (€) Flavelab Flavelab Panpharma Interim measure decision Nov 2000 Possibility of recoupment
• GSK: No entry barrier after patent's expiration, recoupment
– No need to prove recoupment ex post– BotEC just to reply to the defendant's point– Losses on market B: 75 000 € in 1999-2000 (very little!)– Gains on market B in 2001-2002 = extra profit earned by
pricing above the competitive price (Proxy: price of
– Recoupment even easier on market A, where GSK has
more market power (this is just an example)
Other arguments
• GSK: raised prices for fear of being found guilty of predation,
following CC 2000 decision, not for recoupment
• CC: The motivation of the price rise does not matter. This is
just to show that recoupment is not impossible.
• GSK: Flavelab went bankrupt because inefficient • CC: Flavelab good at selling Cefamandol (in market B) and
Flavelab affected by predation (concerned drug accounted for
• CC: GSK did not provide any justification for its behavior Meeting competition defense
• GSK: price cuts necessary to align on Flavelab
• CC: GSK could have aligned without violating the GSK Bids below costs for n+1 < PP(n+1) < Flavelab < PP(n)
• GSK: Price cuts necessary to align on Kefandol® (Lilly)
• CC: Not true: Kefandol® price > predatory prices of GSK Evolution of markets
• Market B:
– 3 generic drug companies have approval, only one
– 6 years after patent's expiration (2005), GSK market
• Market A
– 3 years after patent's expiration (2005), GSK market
– Out of 13 firms having regulatory approval, only 5 enter– Generic drug companies active on market B observe the
– Panpharma did not try to enter market A
Sanctions
• Infringement of Art. 82 (multinational firms, imports, etc.) • Seriousness
– Exclusionary practices– 40 markets involved, generics' entry delayed– GSK: first supplier of hospitals
• Fine: 10 m€
– Legal ceiling at the time: 5 % of GSK France turnover in
– Fine < 1 % of the ceiling– Fine ≈ Size of market A
• Publication of the decision in professional journals Conclusion
• Sends a simple message to markets:
“If you are an autonomous firm and if you are in dominant position, don’t sell below your average variable cost, unless you have an objective justification for it”
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The GSK France Decision of March 2007