On consideration of the merger between Bristol Myers Squibb and Celgene

10.09.2020 | 10:21

In 2019, the FAS Russia approved the acquisition by Bristol Myers Squibb of the rights to determine the terms of conducting business for Celgene, which was carried out as part of a global transaction.

The purpose of the transaction was to create an innovative pharmaceutical company capable of meeting the needs of patients with cancer, inflammatory diseases, diseases of the immune and cardiovascular systems, through the development of costly innovative pharmaceutical products and the use of the existing significant scientific potential. The parties expected that the combined efforts to develop and manufacture pending medicine would lead to significant business development for the consolidated company and new opportunities for patients regarding a range of serious illnesses.

As part of the state control over economic concentration, it was established that Bristol Myers Squibb and Celgene produce and sell medicine with different International Non-proprietary Names (INN). Thus, Bristol Myers Squibb, by acquiring the rights to determine the terms of conducting business for Celgene, expanded the range of its pharmaceutical products.

In addition, the FAS Russia found that there are no analogues of medicinal products corresponding to the INNs "Azacytidine", "Pomalidomide", "Paclitaxel+ [Albumin]" and "Apremilast" within the territory of the Russian Federation, the only supplier of which is Celgene.

With regard to INN "Lenalidomide" pharmaceutical products, the FAS established the presence of several medicines registered within the territory of the Russian Federation, including those of domestic production. However, the FAS had information that Celgene possessed intellectual property right for such medicine. Thus, before the expiration of the patent, participation in the procurement of other manufacturers does not seem possible.

After having carefully studied the materials of the application, as well as analyzed the product markets in which the acquired company operates, the FAS Russia established its dominant position in the product markets of medicines corresponding to the INNs "Azacytidine", "Pomalidomide", "Paclitaxel+ [Albumin]", "Apremilast" and "Lenalidomide".

In order to avoid adverse impact on the state of competition in the respective product markets, the FAS Russia has decided to issue a general ruling to Bristol Myers Squibb, which should ensure that Celgene (or any company that is part of its group of persons) fulfills all contracts (agreements) for the supply of the aforementioned medicinal products, develop a document regulating the interaction of the seller of medicinal products with contractors, do not carry out economically and technologically unjustified reduction or termination of sales of medicines, if demand for them exists.

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