FRANCE Trends and Developments Contributed by: Liliana Eskenazi and Pauline Lecrenais, Fréget Glaser & Associés
tion to the health authorities about Avastin’s off-label use to block or delay public initiatives aimed at facili- tating and securing that off-label use (decision 20-D- 11 of 9 September 2020). The Paris Court of Appeal fully annulled this decision in February 2023. Relying on the case law of the Cour de cassation , it held that the companies’ conduct fell within the scope of their freedom of expression pro- tected by Article 10 ECHR, since the companies’ com- munications related to a debate of general interest, relied on a sufficient factual basis and were measured in their tone. It therefore found that there could be no abuse within the meaning of Article 102 TFEU (Paris Court of Appeal, 16 February 2023, No 20/14632). However, the Cour de cassation quashed that judge- ment because of the methodology applied by the Court of Appeal. According to the Cour de cassation , where competition rules and the fundamental freedom of expression are both at stake, the first step is to assess whether there is a potential abuse within the meaning of Article 102 TFEU by examining whether the conduct falls within competition on the merits, whether it has exclusionary effects and whether there are any objective justifications. It is only in the light of such an assessment that, where a breach of Article 10 ECHR is alleged, the proportionality of the restriction on freedom of expression resulting from that sanction can subsequently be assessed (Cass. Com., 25 June 2025, No 23-13.391). The case is pending before the Court of Appeal on remittal.
Key competition law takeaways – when communicat- ing with healthcare professionals, originator compa- nies must ensure that: • their conduct remains strictly within the bounds of competition on the merits; • they provide only objective information, presented in a measured manner and supported by robust evidence; • their conduct does not risk preventing or slowing the market entry of competing generic or biosimilar products; and • they refrain from providing information that is inac- curate, incomplete or ambiguous, and from shar- ing any “doubts” they may have about the safety, efficacy or bioequivalence of competing generic or biosimilar products.
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