Originally published as Covington Life Sciences Alert on June 1st, 2005
May a dominant pharmaceutical company refuse to supply in full the orders it receives from a wholesaler in an EU country in order to limit parallel trade in its products in the European Union? This was the question put to the European Court of Justice (ECJ) in the context of a preliminary reference from the Greek Competition Commission in the closely-watched case of SYFIAT v. GSK (Case C-53/03). In a disappointing judgment, the ECJ avoided answering the question by ruling that the case was inadmissible because the Greek Competition Commission did not have the power to refer a case to the ECJ as it is not a “court or tribunal” as required by the EC Treaty. By dismissing the case on jurisdictional grounds, the ECJ passed up a golden opportunity to inject much-needed certainty into the law on parallel trade in pharmaceutical products.
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