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ARTICLE · 12 FEBRUARY 2020

ECJ Rules For The First Time On "Pay-For-Delay" Agreements

Herbert Smith Freehills Kramer LLP
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On 30 January 2020 the European Court of Justice ("ECJ") clarified for the first time the criteria governing whether so-called "pay-for-delay" agreements entered into between originator and generic

European UnionAntitrust/Competition Law
Kyriakos Fountoukakos
Kyriakos Fountoukakos
Dafni Katrana
Dafni Katrana
Ruth Allen
Ruth Allen

On 30 January 2020 the European Court of Justice ("ECJ") clarified for the first time the criteria governing whether so-called "pay-for-delay" agreements entered into between originator and generic pharmaceutical companies fall foul of EU competition law rules. Such agreements are a form of patent dispute settlement, whereby in return for a value transfer, a generic manufacturer acknowledges the patent of the originator pharmaceutical company, and agrees to refrain from marketing its generic version of the drug in question for a specified period of time. Pay-for-delay agreements have been in the spotlight of the European Commission ("EC") and national competition authorities for over a decade.

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