The Belgian Competition Authority (Belgische Mededingingsautoriteit/Autorité belge de la Concurrence) ("BCA") published a non-confidential version of its 20 April 2017 decision to clear the acquisition of Belmedis, Espafarmed, Cophana, Alpha Partners and a controlling stake in Sofiadis by McKesson (See, VBB on Belgian Business Law, Volume 2017, No. 4, p. 3, available at www.vbb.com).

The proposed transaction concerns pharmaceutical wholesalers and immediately drew attention. Information emerging in the notification process caused the BCA to open a separate competition investigation of illegal pricing agreements and, in November 2016, to carry out surprise inspections at the premises of several wholesalers.

The merger review process itself went into a second phase after the initial stage of the inquiry had given rise, in December 2016, to a decision by the BCA that was highly critical of the proposed transaction. The BCA found that the structural characteristics of the full-line wholesale market for pharmaceutical products are conducive to tacit coordination of market conduct by the wholesalers. The BCA reached the conclusion on the basis that the proposed transaction would give rise to a "quasi duopoly" in the market for full-line wholesale distribution of medicines, which made a second phase of in-depth review necessary.

McKesson responded to the BCA's concerns by offering the following commitments:

  1. McKesson will allow its wholesaler clients to seek supplies from another wholesaler and designate that wholesaler as a primary or secondary wholesaler (McKesson agreed not to apply exclusivity clauses; clauses providing for a notice period of more than one month; or minimum purchase obligations).
  2. McKesson will not apply to clients of wholesaler-distributors other than Febelco distinct and more aggressive commercial conditions than those applied to Febelco's clients in a similar situation.
  3. McKesson will divest a warehouse in the Ghent area.
  4. McKesson will, during a period of maximum 5 years following the closing of the transaction, supply the pharmacist-clients of wholesaler-distributors CERP and Lifé that are on call. This obligation will come to an end once CERP or Lifé acquire a warehouse in Flanders.

Compliance with all of these commitments will be overseen by a trustee. The BCA found that the parties successfully addressed its concerns and cleared the acquisition, subject to the fulfilment of these commitments.

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