Dominance and market definition in the pharmaceutical industry following the ECJ Paroxetine judgment

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This paper discusses alternative ways in which unilateral conduct to foreclose the entry of generics can be framed. We argue that defining dominance in relation to the actual competitive constraints faced by the originators at the time of the abuse (as the Paroxetine and Servier decisions) is likely to lead to under-enforcement. The suggestion by the CAT, supported by the ECJ, to consider the competitive constraint exercised by the generics when entry is imminent does not help in addressing this under-enforcement. By contrast, an assessment of competitive constraints that is contingent on the abuse does not suffer from this shortcoming.