The Antimonopoly Committee of Ukraine on its website published draft new methodology for determining the market (hereinafter - the Draft). This draft is of particular interest to the participants of the pharmaceutical market in the context of the recent Committee’s investigations. In completed investigations of pharmaceutical companies, determining competitors, and accordingly, the destiny of market participants, the Committee proceeded from the fact that one market is made up of medicines that have the same active substance in the same dosage and have the same dosage form.
As a result, certain markets determined by the Committee do not show the real situation in the competition.
The Draft provides that the criteria for determining market commodity boundaries are:
● characteristics and functional purpose of the goods;
● the price of the goods;
● the goods turnover stage;
● product differentiation (if available).
Significant similarities of commodity characteristics (physical, chemical, technical, operational) and functional purpose of goods can indicate that goods belong to the same commodity market.
Minor differences in product characteristics are not sufficient to exclude the replacement of demand, as this largely depends on the perception of such characteristics by buyers.
In case of finding significant similarities or insignificant differences, the analysis of the characteristics and functional purpose of the goods should be supplemented by research of the reaction of buyers to fluctuations in the price of the target product.
The Draft gives hope for changing the Committee’s approaches to determination of commodity boundaries of medicinal products markets, as it implies mandatory analysis of not only commodity characteristics (in particular, such as composition), but also functional purpose (indications for use in the case of drugs), and also determines how doubts about the interchangeability of goods that have significant similarities (in particular indications for use) can be removed.
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