Teva successfully resist injunction against pharma company under Article 102 TFEU

18 Jul 2011

Chemistree Homecare Ltd & anor v Teva Pharmaceuticals Ltd [2011] EWHC 1877 (Ch)

On 4 July 2011, Mr Justice Mann refused an application brought by Chemistree, a homecare provider/group of pharmacies for an interim mandatory injunction requiring the pharmaceutical company Teva to supply it with 1200 packs of Copaxone (a patented drug licensed for treating certain forms of multiple sclerosis) pending trial. Chemistree said it required that amount of Copaxone not only for its UK patients but also to ensure the success of its new online Europe wide prescription dispensing service. The UK price for Copaxone is significantly cheaper than that in many other EU Member States. Chemistree argued that Teva’s refusal to supply it with the full amount sought was an abusive refusal to supply contrary to Article 102 TFEU/ the Chapter II prohibition in the Competition Act 1998. Chemistree also relied on two non-competition arguments, namely that the refusal was contrary to Article 56 and/or Article 34 TFEU as it restricts Chemistree’s ability  to provide its EU dispensing service between Member States and that it put Teva in breach of the public supply obligation in Regulation 8(1)(b) of the Medicines for Human Use Regulations 2005, implementing Article 81 of the Medicines Directive 2001/83.

The Judge found that Chemistree’s case on abuse of a dominant position was arguable although on the material before him  “not obviously strong“. In reaching this conclusion he considered and applied the judgment of the European Court of Justice in Greek Glaxo [2008] ECR I-7139. He reached the same conclusion on the TFEU provisions and described the Article 81 point as “not promising”.

On 18 July Mann J ordered an expedited trial on liability which has been fixed to come on in the week commencing 13 February 2012.

Christopher Vajda QC and Ronit Kreisberger, instructed by Charles Russell, acted for Teva.