Temporary Relief of Pay-for-Delay: The ECJ as Specifically Different Antidepressant

Pay-for-delay agreements are increasingly scrutinised and sanctioned in the European Union (EU). The state of play so far has only made it possible to analyse such agreements as restrictions of competition by object under Art. 101(1) of the Treaty on the Functioning of the European Union (TFEU) and in some cases as abuses of a dominant position under Art. 102 TFEU. At the beginning of this year, the European Court of Justice (ECJ) gave its first ruling on this issue. The Generics judgment (C-307/18) deepens the reasoning and defined line of the General Court (EGC) and the Commission and deals with fundamental questions of competition law. To this end, the Court has extended the existing investigation criteria. Although the judgment consolidates the status of pay-for-delay, it fails to resolve important aspects and leaves only losers. This comment takes the ECJ’s decision in Generics as an opportunity to analyse pay-for-delay agreements in the EU from a critical perspective.