Major win before the Supreme Court in a case of abuse of dominance
Posted Jan 2024
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Calavros Law Firm successfully represented the Greek subsidiary of a leading international pharmaceutical group of companies before the Supreme Court in the context of a long-lasting litigation pertaining to alleged abuse of dominance due to restrictions on parallel trade. The Supreme Court upheld our cassation ground on wrongful interpretation and application of articles 2 L. 703/1977 (2 L.3959/2011) and 82 EC (102 TFEU) in light of the criteria determined by the CJEU in the landmark preliminary ruling on Joined Cases C‑468/06 to C‑478/06 [“Lelos Ruling”], handed down in the context of the same litigation.
The Supreme Court departed from the previous case law established by National Courts regarding the interpretation of the criteria set by Lelos ruling in determining whether a dominant undertaking may restrict supplies in order to safeguard its business interests in cases of excessive parallel exports. In particular, the Supreme Court held that in assessing whether a dominant pharmaceutical company’s refusal to meet fully a wholesaler’s orders on certain medicinal products, constitutes abuse of dominance, it must determine whether such orders were in line with the local prescription needs in light of the parties’ previous business relations.
This welcome interpretation employed by the Supreme Court, shifts emphasis from the criterion of prior business relationship to the objective criterion of local prescription needs, putting an end to the conflicting interpretation employed by National Courts pertaining to the “out-of-ordinary” justification introduced by the Lelos ruling.
That being said, it is safe to state that the Supreme Court decision, in effect establishes the rule of reason approach in interpreting article 102 TFEU in cases of refusal of supply especially in the pharmaceutical sector.
Our client was represented by Prof. Constantin Calavros, Mr. Themistoklis Kloukinas and Ms. Angeliki Rousaki.