In a decision of July 13, 2017 the National Commission for Markets and Competition (Comisión Nacional de los Mercados y la Competencia or “CNMC”) accepted commitments proposed by IMS Health, S.A. (“IMS”) to close an abuse of dominance investigation in the market for the provision of sales information on pharmaceutical products (also known as “sales tracking data”).
IMS provides market data on pharmaceutical markets based on information obtained from wholesalers, pharmacies, hospitals, clinics and healthcare personnel. Their clients are mainly pharmaceutical companies, as well as distributors, laboratories, public agencies and manufacturers of surgical material. The CNMC found that IMS held a “quasi monopolistic” share of the market for “information services for data on sales of pharmaceutical products” of between 85% and 100% sales information.
IMS provides market data on pharmaceutical markets based on information obtained from wholesalers, pharmacies, hospitals, clinics and healthcare personnel
The CNMC investigation was the result of a complaint by IMS’ competitor HEALTH MARKET ESPAÑA, S.L., which claimed that certain clauses in IMS contracts with pharmaceutical wholesalers limited their freedom to supply sales data to competitors of IMS. In this regard, the CNMC decision considered that a number of clauses imposed de facto an exclusivity in favor of IMS and hindered the market entry of other players:
1. Early termination: IMS had the right to terminate the contract if the wholesaler chose to supply market information to third information service companies.
2. Obligation of prior notification: The wholesaler had to notify IMS its intention to provide market information to other information services companies 3 months in advance.
3. Price reductions: As an alternative to early termination, if the wholesaler chose to supply market information to third companies, IMS had the right to reduce the economic consideration payable to the wholesaler by 40% or 60%, depending on whether the information was supplied to one or two third companies.
4. Most favoured nation: The wholesaler was obliged to supply the market information to IMS on terms that were not less favorable than those offered to other information services companies.
IMS has agreed to remove said problematic clauses from its contracts and on that basis the CNMC has closed its investigation using the formal settlement provisions in Article 37 of the Law for the Defense of the Competition.
Although decisions of this kind have been relatively rare since the creation of the CNMC in October 2013 (this being the seventh one), it is the second such decision in less than a month following the recent decision to close a parallel trade investigation against Orangina Schweppes. In contrast, the former competition authority, the Comisión Nacional de la Competencia, issued 22 settlement decisions in the 2009-2013 period.
The decision may be accessed (in Spanish) here.