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 The court said these deals in themselves do not constitute a breach
of competition rules but their impact needed to be assessed because
they could harm competition.
The case was brought before the court by GSK after Britain's
competition watchdog fined the drugmaker 37.6 million pounds ($49
million) in 2016 for its so-called "pay-for-delay" deals that
postponed the launch of cheaper copies of an anti-depressant.
"It is necessary to determine how the market will probably operate
and be structured in the absence of the concerted practice," the
court said in its assessment of the potential harm to competition
caused by such deals.
The British Competition and Markets Authority (CMA) had said that
between 2001 and 2004 GSK paid generic drug companies over 50
million pounds with the intention of delaying the release of cheap
generic versions of its former blockbuster Seroxat after its patent
expired in 1999.
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The EU court said on Thursday that the ability of each generic
manufacturer to access the market had to be assessed in deciding
whether the deals were unlawful.
If generic drugmakers were not in a position to sell their cheaper
copy of Seroxat there would have been no harm to competition, the
court concluded, effectively leaving a British appeal tribunal to
settle the dispute.
"We do not yet have the final ruling in this case, which relates to
agreements from nearly 20 years ago, and so will not be commenting
further while proceedings are ongoing," a spokesman for GSK said in
a statement.
(Reporting by Francesco Guarascio; Additional reporting by Alistair
Smout in London; Editing by Philip Blenkinsop and Andrew Cawthorne)
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