To quote this paper: L. DRISSI, “The French Supreme Court overturns the appellate decision that failed to establish an abuse of dominant position through disparagement, alarmist and misleading statements about the risks of using a drug”, Competition Forum, 2025, n° 0073 https://competition-forum.com. 

Information plays a crucial role in the commercial sphere, as it directly impacts the reputation of companies and, by extension, consumer choice. The boundary between legitimate communication, which protects the public interest, and wrongful denigration is sometimes narrow, and comes more complex when the issue of abuse of dominant position arises. The ruling delivered by the French Supreme Court on June 25, 2025^[1], concerning practices implemented in the field of age-related macular degeneration treatment ( AMD ), illustrates how judges navigate these various concepts.

In the present case, Genentech developed two active ingredients, one for cancer treatment and the other for treating eye diseases. Under licensing agreements, Roche and Novartis market respectively the drug Avastin for cancer treatment, and the drug Lucentis for the treatment of AMD. Each drug has received marketing authorization (MA) for the treatment of a specific condition. Roche can therefore market Avastin for the treatment of cancer, while Novartis can market Lucentis for the treatment of AMD.

This sector-specific approach is challenged by medical practice, which has observed Avastin’s effectiveness in treating AMD. Its significantly lower price compared to Lucentis contributed to the dissemination of this practice and to its off-label use[2].

Faced with this conduct, the companies implemented a denigration campaign aimed at diverting market actors from using Avastin, and engaged in behavior described by the Competition Authority as « alarmist or even misleading statements to public authorities regarding the risks associated with using Avastin in the AMD treatment market », for which the companies were subsequently sanctioned for collective abuse of a dominant position.

The Court of Appeal upheld their appeal and overturned nearly the entirety of the decision issued by the Competition Authority. The president of the Authority then filed an appeal before the Commercial Chamber of the French Supreme Court to have these practices recognized as constituting an abuse of a dominant position.

The French Supreme Court then addressed the question of whether practices aimed, on the one hand, at diverting market actors from a medicine through a denigration campaign, and, on the other hand, at influencing the decisions of public authorities through alarmist and misleading statements, constitute a collective abuse of a dominant position.

By its decision of June 25, 2025, the French Supreme Court overturned the ruling of the Paris Court of Appeal and recognized the existence of a collective dominant position by characterizing the maintenance of potential competition between the products despite legislative barriers implemented in the pharmaceutical sector (I). The court also clarified the boundaries between freedom of expression and disparagement, emphasizing that participation in a debate of general interest does not grant immunity under freedom of expression if the speech pursues an anti-competitive objective (II).

I. The Difficult Characterization of a Dominant Position in Light of the Specificities of the Pharmaceutical Sector

The presence of legal constraints in the pharmaceutical sector complicates competition analysis (A), which led the judges in this case to consider the maintenance of a form of potential competition in order to capture a practical and scientific reality (B).

A. The Influence of Legal Barriers on the Determination of the Relevant Market

The pharmaceutical sector is characterized by specificities that significantly influence competition analysis. Drugs are subject to a marketing authorization (MA) requirement issued by health authorities in order to be commercially available. At the same time, practitioners enjoy freedom of prescription, provided by Article L.162-2 of the French Social Security Code, which grants them discretion in prescribing treatments when the prescriber deems the use of a particular specialty indispensable.

One of the central issues in the present case concerned the determination of the relevant market, particularly regarding the substitutability—or lack thereof—of the two products at issue following the enactment of the Bertrand Law on December 31, 2011. Article L.5121-12-1 of the French Public Health Code provides that off-label prescriptions are only permissible in the absence of an appropriate drug alternative holding an MA or a temporary authorization for use.

On this basis, the Court of Appeal fixed the infringement period to practices prior to the enactment of the Bertrand Law, i.e., from April 7, 2008, to December 30, 2011, considering that the law rendered the prescription of Avastin outside its MA illegal, thereby precluding legal substitutability between the two products. This approach was challenged by the president of the Competition Authority, invoking the doctors’ freedom of prescription.

The French Supreme Court, however, upheld the Court of Appeal’s position on this point alone, ruling that prescribing Avastin outside its marketing authorization was no longer legally possible following the enactment of the Bertrand Law, which excludes the existence of legal substitutability between the two products in the absence of the possibility to prescribe Avastin for the AMD market^[3]. This solution assumes the need to analyze the substitutability of products or services both in economic and legal terms.

This position appears unsatisfactory in light of reality, namely the recognition of a certain degree of interchangeability between the two treatments, as confirmed by scientific studies and hospital practice. In this regard, the French Supreme Court seeks to acknowledge the maintenance of potential competition between the products.

B. The Recognition of Potential Competition in Light of Practical and Scientific Reality

The French Supreme Court recalled that Article 102 of the Treaty on the Functioning of the European Union and Article L.420-2 of the French Commercial Code aim to protect not only actual competition but also potential competition in the market. Potential competition refers to the existence of real or concrete possibilities for other operators or products to exert competitive pressure on companies already present in the market^[4].

Since the right of prescription operates within the limits of the law, the prohibition established by the Bertrand Law on off-label prescriptions of a drug in the presence of an alternative holding an MA put an end to any legal substitutability between the two drugs as of December 31, 2011. The Court of Appeal therefore limited its examination of the infringement to the period prior to this date, without considering the possibility of maintaining potential competition after the law came into effect.

The French Supreme Court rejected the solution adopted by the Court of Appeal on this point, holding that the existence of a legal prohibition did not put an end to all competition between the products. Based on a set of factual indicators, the Court recognized that, after December 31, 2011, there were real and concrete possibilities for Avastin to enter the AMD treatment market. It notably highlighted the equivalence of the products as recognized by both the companies involved and hospital practitioners, as well as by scientific studies conducted on the subject^[5].

This recognition by the judges of the existence of potential competition appears as an alternative solution in the face of legal barriers that prevent the characterization of actual competition between the two products^[6]. Nonetheless, medical practice attests to a situation of already effective competition between the two products. The Court therefore approached this relationship under the framework of potential competition, in the absence of being able to qualify the existence of effective competition. This qualification enables the Court to recognize the existence of a common market, which is a necessary condition for establishing an abuse of a dominant position. It thereby allows the Court to proceed with a subsequent analysis of the abuses found.

II. The Qualification of Disparagement Constituting an Abuse of a Dominant Position

The French Supreme Court examines abuse of a dominant position in two stages. To qualify a statement as abuse, it first provides clarifications regarding the extensive use made by the parties of freedom of expression (A), and then emphasizes the need to take into account the intention of the companies involved (B).

A. The Neutralization of Freedom of Expression by Competition Law in the Assessment of Conduct

The core of the decision lies in reconciling competition law with freedom of expression, guaranteed by Article 10 of the European Convention on Human Rights (ECHR). While freedom of expression enjoys enhanced protection when it contributes to a debate of general interest, European case law leaves States a margin of appreciation to regulate this freedom, particularly in commercial matters, that is, when purely private economic interests are at stake.

In this case, the Court of Appeal had held that the statements made by the laboratories were based on a sufficient factual basis, were expressed with restraint, and contributed to a debate of general interest^[7]. The judges therefore excluded any qualification of abuse of a dominant position, considering that this communication was protected under Article 10 of the ECHR.

The French Supreme Court censured this reasoning and adopted a firm position, based on the particular responsibility incumbent on companies in a dominant position. A statement intended to discourage the use of a competing product and contributing to the strengthening or maintenance of a dominant position can be sanctioned under competition law, regardless of its alleged general interest or truthfulness. The Court affirmed that the conduct of a dominant company must be assessed solely against the criteria of Article 102 TFEU, which prohibits the abusive exploitation of a dominant position by any means capable of restricting competition other than by the merits of the products. Compliance of a statement with freedom of expression cannot, therefore, preclude the qualification of abuse of a dominant position^[8].

Indeed, Article 10 §1 of the ECHR guarantees freedom of expression, but §2 allows certain restrictions where they are prescribed by law, pursue a legitimate aim, and are necessary in a democratic society. Freedom of expression therefore gives way to competition law as regards the legal characterization of the conduct, since the constraints imposed by that body of law fall within the scope of §2. When such a restriction is governed by Article 10 of the ECHR, the assessment of the proportionality of the sanction remains subject to that provision, which requires a review of the restriction imposed on freedom of expression.

In conclusion, Article 10 of the ECHR can only be invoked in relation to the proportionality of the sanction, not in relation to the qualification of the conduct^[9].

This solution highlights the vigilance with which companies must exercise their freedom of communication, particularly in the pharmaceutical sector, where scientific and commercial interests intersect^[10].

B. The Lack of Marketing Authorization Holder Status as an Indicator of Anticompetitive Intent

In the context of assessing an abuse of a dominant position, evidence of anticompetitive intent, although insufficient on its own, constitutes a factual circumstance that can be taken into account for determining an abuse of a dominant position^[11].

In this case, the Court of Appeal, in order to exclude the existence of disparagement constituting an abuse of a dominant position, based its decision on the protection afforded under Article 10 of the ECHR, By demonstrating the protection of the public interest, the existence of a sufficient factual basis, and a certain restraint in the expression of the statements, it concluded that no abuse of this freedom of expression had been established. This approach therefore excluded any analysis of the common strategy of the laboratories aimed at diverting all prescriptions toward Lucentis.

The Court clarified that the analysis of an abuse of a dominant position must include an examination of factual elements, including the use of means unrelated to competition by merit—such as the use of regulatory procedures to prevent or make it more difficult for competitors to enter the market. Through a contextual analysis, the Court identified an anticompetitive objective related to the holding of the absence of pharmacovigilance obligations^[12].

The Hoffman-Laroche ruling of January 23, 2018^[13], states that these obligations, which may involve steps such as disseminating information about the risks associated with off-label use of a drug, rest solely with the holder of the marketing authorization for the drug in question, and not with another company marketing a competing drug covered by a separate marketing authorization. Consequently, the statements made by Novartis, which was not the MA holder for Avastin, warranted examination in relation to the existence of an anticompetitive objective aimed at favoring Lucentis in the AMD treatment market.

In conclusion, the French Supreme Court reiterates in this decision that companies in a dominant position have a particular responsibility, preventing them from making alarmist or disparaging statements to market actors or public authorities. By recognizing the existence of potential competition between Avastin and Lucentis, the Court is able to assess the notion of abuse and, on that basis, to exclude the application of Article 10 of the ECHR at the stage of characterizing the conduct. This decision strengthens vigilance toward anti-competitive practices in the pharmaceutical sector, which is closely tied to public health imperatives.

Lina DRISSI

^[1] Cass. Com., June 25, 2025, n° 23-13.391.

[2] 20-D-11 of September 9, 2020 relating to practices implemented in the field of age-related macular degeneration (AMD) treatment, §66.

^[3] Cass. Com., June 25, 2025, n° 23-13.391, §17.

^[4] CJEU, judgments of February 28, 1991, Delimitis, C-234/89, paragraph 21, and of January 30, 2020, Generics (UK) and Others, C-307/18, paragraph 36.

^[5] Cass. Com., June 25, 2025, n° 23-13.391, §33

^[6] C. Cizeron, « Pratiques anticoncurrentielles – concurrence potentielle et liberté d’expression : un arrêt déterminant en vue du dénouement de l’affaire de la DMLA », Contrats Concurrence et Consommation, October 1st, 2025, n°10, comm. 133.

^[7] Cass. Com., June 25, 2025, n° 23-13.391, §35.

^[8] Cass. Com., 25 juin 2025, n° 23-13.391, §42 à §45

^[9] H. Aubry, « Concurrence – Liberté d’expression, abus de position dominante et dénigrement », Contrats Concurrence Consommation, November 2025, n° 11, comm. 143

^[10] M. Cartapanis., « Dénigrement : La Cour de cassation rappelle l’autonomie du droit de la concurrence vis-à-vis de la liberté d’expression et annule un arrêt de la Cour d’appel de Paris dans le secteur du traitement de la dégénérescence maculaire liée à l’âge (Roche e.a.) », June 25, 2025, Concurrences, N° 10-2025, Art. N° 128855.

^[11] CJEU, judgment of May 12, 2022, Servizio Elettrico Nazional, C-377/20, paragraph 63.

^[12] Cass. Com., June 25, 2025, n° 23-13.391, §59.

^[13] CJEU, judgment of January 23, 2018, F. Hoffmann-La Roche, C-179/16, paragraph 91.