The EU Aspen decision: the European Commissions first excessive pricing decision in the pharmaceutical market

Abstract

In February 2021, the European Commission (the 'Commission') adopted a decision in the Aspen case making legally binding on Aspen a series of commitments that effectively addressed concerns of abusive conduct for charging excessive and unfair prices contrary to Article 102(a) TFEU. Aspen is the first Commission decision to apply the unfair pricing prohibition under Article 102(a) TFEU to pricing practices in the pharmaceutical sector, and the first ever Commission decision purely based on excessive pricing conduct. Starting in 2012 and over a period of several years, Aspen had implemented very high and unjustified price increases for six niche off-patent cancer medicines throughout the EEA. The price hikes were often several hundred percent, resulting in prices that earned Aspen particularly high profit margins. The Commission assessed these practices according to the framework of analysis for unfair pricing set out by the Court of Justice in its United Brands judgment, thus providing long-awaited guidance on a number of interesting methodological questions.