In a judgment dated 30 August 2023, the French Supreme Court rejected an appeal by Sanofi against the award of damages to the Caisse nationale d’assurance maladie des travailleurs salariés, the French national health insurance fund for employees (CNAM) (see, attached judgment).

The damages result from a 2013 decision of the French competition authority (FCA) which had found against Sanofi on account of that firm’s denigration strategy against generic versions of its Plavix® pharmaceutical specialty (international non-proprietary name: clopidogrel).

Sanofi was held to have abused its dominant position on the French market for the ambulant sale of clopidogrel because it had cast doubts on the generics’ safety and efficacy in its interactions with healthcare professionals.

That decision was confirmed by both the Paris Court of Appeal (judgment of 18 December 2014) and the Supreme Court (judgment of 18 October 2016) and became part of an extensive line of similar cases in France, in other EU Member States and at the EU level (see for recent examples, Van Bael & Bellis Life Sciences News and Insights, 20 June 2022).

In September 2017, CNAM brought an action for damages to seek compensation for the additional expenditures which it claimed to have made following the lower-than-expected uptake of generic clopidogrel which had allegedly resulted from Sanofi’s abusive conduct.  The Paris commercial court dismissed the action as time-barred in October 2019. However, on 9 February 2022, the Paris Court of Appeal overturned that judgment, finding that CNAM had started its lawsuit on time and had spent more than necessary on clopidogrel-based medicines.

Sanofi then appealed to the Supreme Court contending that the statute of limitations had already expired before the FCA’s 2013 decision.

According to Sanofi, CNAM should have acted when it first learned of the competition infringement from other sources than the FCA’s decision. Sanofi maintained that its position was all the more compelling, given the “pivotal role” which CNAM had played in the competition inquiry leading up to the FCA’s 2013 decision.

The Supreme Court disagreed, finding that CNAM had only become certain of Sanofi’s abusive conduct once the FCA had made its infringement decision public.

According to the Supreme Court, only that decision had allowed CNAM to gain knowledge of the relevant facts and their implications necessary to bring an action for damages.