Potential Competition in EU Law

Abstract

Potential competition refers to the extent to which the activities of undertakings not yet present in a relevant market nonetheless provide a competitive constraint on the behaviour of incumbents in that market. Recent case-law of the EU Court of Justice dealing with pay-to-delay agreements in the pharmaceutical sector has considerably deepened our understanding of potential competition as a relevant concept under Articles 101 and 102 TFEU. This short article critically assesses the legal test emerging from the Generics and Lundbeck judgments and considers its applicability beyond the pay-to-delay context.

Keywords: potential competition, competition law, antitrust, EU law

JEL Classification: K20, K21