ACM fine for excessive drug pricing upheld

Yesterday, in a judgment based on article 102 TFEU, the District Court of Rotterdam upheld ACM’s decision to impose a fine of € 17 million on an international pharmaceutical company for abusing its dominant position.?

After acquiring a drug that for many years was used off-label for the treatment of a rare disease, the company obtained so called “orphan drug designation” and market exclusivity in the EU. In a few steps, the company increased the price for a package of 100 capsules from € 46 to € 13.090.?

As the company filed an elaborate appeal based on numerous procedural and material points, the judgment (in Dutch only) is interesting for those who follow the development of EU competition law. A couple of points stand out:?

• According to the court, this case is a "text book example" of an abuse of a dominant position; there was no objective justification for the price increase.?
• The Net Present Value method and the comparison between the Internal Rate of Return (IRR) and Weighted Average Cost of Capital (WACC) could be used for establishing an abuse.
• The ACM did not have to take into account the fines imposed on the company by the Italian and Spanish competition authorities, as the fine imposed by the ACM relates to the abuse of a dominant position in the Netherlands only.

https://uitspraken.rechtspraak.nl/details?id=ECLI:NL:RBROT:2025:1811