Présentation powerpoint

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
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2003: Complaint withdrawn – CC proceeded ex officioJuly 2004: Statement of objections
2006: first hearing, supplementary SO, final hearingMarch 2007: Decision on the merits, fining GSK France
Paris Court of Appeal's judgement expected early 2008
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
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
Entry →
Market B: Zinnat® protected until May 1999
Predation period: 1999-2000
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
– 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
Entry →
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 (€)
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.)
– 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
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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