Overview
In June 2026, the European Commission (the “Commission”) opened a formal antitrust investigation into Sanofi (Case AT.40998), concerned that it had run a misleading campaign against a rival enhanced influenza vaccine that public-health authorities recommend on equal footing for elderly patients. The case is the newest in a growing body of European enforcement that treats disparagement, the spreading of misleading information about a competitor’s product, as an abuse of a dominant position rather than a mere matter of unfair competition. This article explains what disparagement means in competition law, reviews the European cases, examines the Turkish approach, compares them, and concludes.
What Counts as Disparagement?
Disparagement, or product denigration, occurs when an undertaking disseminates false, misleading or unnecessarily hurtful information about a competitor or its products. Traditionally it belonged to unfair-competition law: for example in Türkiye, Article 55/1-a of the Turkish Commercial Code (“TCC”) No. 6102 lists disparaging others or their goods, work products, prices, activities or business with false, misleading or unnecessarily offensive statements as unfair competition, and the ordinary courts treat themselves as the competent forum. The test is objective, measured by how the average addressee would perceive the statement, so even a true statement can be unlawful if presented in a misleading or unnecessarily offensive way.
What is newer is the treatment of the same conduct under competition law. Where the undertaking doing the disparaging is dominant, its misleading statements about a competitor may amount to an abuse under Article 102 of the Treaty on the Functioning of the European Union (“TFEU”) and Article 6 of Turkish Law No. 4054. A dominant undertaking bears a special responsibility, and if it seeks to exclude a competitor by disparaging it rather than competing on the merits, that conduct can distort competition. In EU law the threshold is low. In the Article 101 setting the Court of Justice has held that disseminating misleading information about a competitor product can amount to a restriction “by object” (F. Hoffmann-La Roche and Others, C-179/16), and in its Article 102 cases the Commission has treated such conduct as abusive where it is merely capable of producing exclusionary effects, without proof of actual harm to the market. It usually targets those who choose what to buy or prescribe, above all healthcare professionals, which is why it has developed most in the pharmaceutical sector.
Disparagement in the European Union
At national level the ground was prepared earlier, above all in France, where the competition authority sanctioned Sanofi-Aventis in 2013 for disparaging generic rivals of one of its medicines. France’s practice reaches back further and shaped the analytical template. The leading case is France Télécom.[1] The former state telecoms monopoly was found to have abused its dominance by running a systematic campaign, built on an internal sales guide, that cast doubt on new entrants’ offers. The authority drew a key line: disparagement becomes an abuse only where the conduct is linked to the dominant position, whose incumbent credibility makes the campaign more effective. The electricity distributor GEG was condemned on the same reasoning after telling the press that its rivals gave poor service and chased purely financial ends.[2] In the pharmaceutical field, cases such as Schering-Plough set out a four-part test: a commercial aim; statements with no objective basis, which the dominant firm must substantiate; a capacity to foreclose; and a link to dominance.[3] The limits matter too. In Canal Plus the authority declined to act, holding that vague, unverifiable boasts about a rival stay within legitimate commercial speech.[4] And in the French Avastin/Lucentis proceedings the Paris Court of Appeal annulled the Autorité’s decision in February 2023: the messaging had a sufficient factual basis and fed a genuine public-health debate, so it was protected by freedom of expression under the European Convention on Human Rights.[5] Beyond France, the Danish authority condemned Falck, the dominant ambulance operator, for a covert, public-relations-driven campaign that stopped a tender winner from recruiting paramedics and drove it from the market, a rare case of actual, not merely potential, foreclosure.[6]
The Commission’s first case built solely on disparagement concerned Vifor Pharma (Case AT.40577)[7]. Vifor was suspected of undermining Monofer, the intravenous iron product of its competitor Pharmacosmos, by tying it to the safety connotations of older “dextran-based” products and to a higher rate of hypersensitivity reactions than its own Ferinject. The Commission accepted commitments in July 2024: a multi-channel campaign correcting the earlier messaging across the nine Member States where Vifor was preliminarily dominant, a ten-year ban on safety claims not grounded in Monofer’s label or in head-to-head trials, and internal compliance controls. No infringement was formally found, yet the remedy is telling: the Commission was not content to stop the conduct but required Vifor to undo its effects, on pain of a fine of up to 10% of worldwide turnover.
Where Vifor ended in commitments, Teva (Case AT.40588)[8] ended in a penalty, and a broader theory. In October 2024 the Commission fined Teva €462.6 million for a single and continuous abuse of Article 102 that wove disparagement together with patent strategy: it filed and strategically withdrew divisional patents around its multiple sclerosis medicine Copaxone while running a systematic campaign questioning the safety, efficacy and equivalence of a competing glatiramer acetate medicine before physicians and payers.
In the newest Sanofi case (Case AT.40998)[9] the Commission suspects Sanofi, dominant in Germany and France, of telling healthcare professionals that CSL Seqirus’s Fluad was inferior to its own over-60s vaccine Efluelda, against national vaccination recommendations. The preliminary assessment sorts the messaging into three types: presenting Fluad as resting on weaker evidence than Efluelda; misrepresenting the national recommendations by implying that Efluelda was the only enhanced vaccine advised for the elderly; and portraying STIKO’s recommendation of Fluad as still open to unresolved scientific objections that STIKO had in fact examined and set aside. The second type repays attention, because a claim about a company’s own product, made without naming the rival, can itself be abusive once it misleads and unfairly harms a competitor. After unannounced inspections in September 2025 it opened proceedings in June 2026 on the commitments track, without prejudging the outcome. In July 2026 the Commission went further and market-tested commitments offered by Sanofi: without admitting any breach, Sanofi has offered, for four influenza seasons until March 2030, to publish corrective statements on its German and French websites acknowledging that the ECDC, Germany’s STIKO and France’s HAS treat the two vaccines as equivalent, to stop portraying Fluad as inferior, and to submit to an external monitoring trustee. Notably, these commitments are markedly lighter than Vifor’s, running four seasons rather than ten years. Read together, the Commission’s three cases converge on a single proposition: that misleading denigration by a dominant undertaking is a method of exclusion, not merely sharp salesmanship.
The Approach in Türkiye
Türkiye offers an unusually clear picture, because the Turkish Competition Board (the “TCB”) has addressed disparagement repeatedly and, for the most part, with a common evaluation. Its consistent starting point is that disparagement of a competitor belongs to unfair-competition law under the TCC, not to competition law under Law No. 4054, and it applies the latter only where an additional element is present. What is instructive is less the uniform outcome than what distinguishes the cases in which the TCB is willing to cross that line.
The common line runs back two decades and across sectors. Beginning with a 2002 complaint against Unilever in the ice-cream market, the TCB has consistently treated misleading or denigrating statements about a competitor as unfair competition rather than an abuse, in cases spanning music, telecoms, chemicals and automotive glass and, most recently, the 2024 İSSU decision on marine water supply. Even where the disparaging undertaking is dominant, that alone does not make the conduct a competition-law violation. The message is uniform: absent an effect on the competitive structure of the market, disparagement is left to the ordinary courts.[10]
The divergence among these cases lies less in their outcomes than in their reasoning and in the elements that accompany the disparagement. The most significant difference is methodological. In the earlier decisions the TCB excluded disparagement from Law No. 4054 more or less as a category. In EAE Elektrik Asansör (12 January 2023, No. 23-03/39-16), reached only after the Ankara 7th Administrative Court had annulled a 2019 refusal (No. 19-39/603-257) and ordered a full investigation, the TCB instead adopted an effects-based test: disparagement is a competition violation only if it is capable of distorting competition and harming consumers, through effects such as higher prices, reduced quality or innovation, or actual or potential foreclosure. On the facts, statements confined to a single tender and a single customer in the busbar systems market could not affect the market’s structure, so the conduct was again left to unfair-competition law (para. 63).[11] The outcome matched the earlier line, but the criteria did not: EAE leaves an express opening for competition-law liability where the market effect is real.
The other, and decisive, distinction is the presence of an agreement. In the Lucentis decision (21 January 2021, No. 21-04/52-21) the TCB did apply competition law, because the disparagement was not a stand-alone unilateral act but part of a cartel: Novartis and Roche gave physicians misleading information about the cheaper Altuzan (Avastin) to shift demand to the more expensive Lucentis and created a false perception of difference between the two products, which the TCB found breached the prohibition on agreements in Article 4 (paras. 164 and 175). It fined Novartis around 165.5 million TRY (about €3.16 million)[12] and Roche around 113 million TRY (about €2.15 million). The decision was annulled by the Ankara 13th Administrative Court and is under appeal before the Council of State.[13] Lucentis does not contradict the common line so much as mark its boundary: what took the conduct into competition law was the horizontal agreement, not the disparagement as such.
Taken together, the decisions are consistent rather than conflicting. The TCB’s common evaluation is that disparagement is presumptively unfair competition; only two variables change the answer. First, whether the conduct forms part of an anticompetitive agreement, as in Lucentis (Article 4). Second, whether, following EAE, it is capable of foreclosing competitors and distorting the market’s structure (Article 6). Absent either, the matter is left to the ordinary courts.
Comparison
Side by side, the systems form a spectrum rather than a clean divide. At one end, the Commission, together with several national competition authorities across Europe, treats disparagement by a dominant undertaking as an abuse, often a restriction “by object,” and increasingly imposes not just cease orders but corrective campaigns, long-term commitments and payments. At the other, the position in the United States is unsettled: some courts doubt that misleading statements harm competition rather than competitors and leave the matter to false-advertising law, while others accept that disparagement by a monopolist can breach Section 2 of the Sherman Act, whether once a strict de minimis presumption is rebutted or on a case-by-case assessment of the conduct as a whole. Türkiye sits between: its default is unfair competition, but the EAE and Lucentis decisions show the TCB will apply competition law where disparagement can foreclose competitors or forms part of an agreement.
The common European test asks for a dominant position (or, under Article 101, an agreement); objectively misleading information that typically contradicts the findings of medicines regulators; an audience able to shift demand, such as healthcare professionals, hospitals and payers; and a capability to restrict competition. The divergence between the abuse-of-dominance and unfair-competition approaches is therefore less a contradiction than a difference in where each system places the centre of gravity: all agree the conduct is unlawful somewhere, and disagree only on whether competition law is its proper home.
Conclusion
The direction of travel in Europe is clear: disparagement has become a live enforcement priority, especially in pharmaceutical and other information-sensitive markets, and cooperation between authorities means that exposure can travel quickly across borders. Türkiye, which follows EU legislation and case law closely, may increasingly treat disparagement as a competition matter in parallel with the European Union. For dominant undertakings the lesson is concrete: communications about competitors, especially smaller ones, should be accurate, evidence-based and consistent with regulatory findings, and competition-law training should reach every team that speaks to customers, not only the sales force but also medical-science liaisons, market-access staff and the key opinion leaders a company briefs. A further question, still open, is how far artificial intelligence will sharpen these campaigns, letting misleading messages be tailored to individual prescribers at scale and made harder for authorities to detect. What is settled, in Europe at least, is that a dominant undertaking that talks down its competitors now does so at its peril.
[1]Conseil de la concurrence, France Télécom, décision n° 07-D-33 (15 October 2007), broadband internet-access market: abuse of a dominant position, including conduct directed at competing internet-access providers.
[2]Autorité de la concurrence, GEG (Gaz Électricité de Grenoble), décision n° 09-D-14 (2009); €320,000 fine for a press release denigrating its competitor Poweo.
[3]Autorité de la concurrence, Schering-Plough, décision n° 13-D-21 (18 December 2013).
[4]Autorité de la concurrence (formerly Conseil de la concurrence), Canal Plus (pay-television): the statements were held to remain within legitimate commercial speech and not to constitute actionable disparagement.
[5]Autorité de la concurrence, décision n° 20-D-11 (9 September 2020; fines totalling €444 million on Novartis, Roche and Genentech), annulled in its entirety by the Paris Court of Appeal, 16 February 2023 (RG n° 20-14632), on freedom-of-expression grounds.
[6]Konkurrencerådet (Danish Competition Council), Falck / BIOS (ambulance services), 30 January 2019.
[7]European Commission, Case AT.40577 (Vifor); “Commission seeks feedback on commitments offered by Vifor…”, press release IP/24/2110, 19 April 2024; commitments made binding on 22 July 2024 (IP/24/3907).
[8]European Commission, “Commission fines Teva €462.6 million over misuse of the patent system and disparagement…”, press release IP/24/5581, 31 October 2024, Case AT.40588; appeal pending, Case T-19/25.
[9]European Commission, Case AT.40998, Sanofi Efluelda; proceedings initiated and preliminary assessment adopted on 26 June 2026, concerning the dissemination of potentially disparaging messages since at least April 2024, contrary to Article 102 TFEU and Article 54 EEA. Sanofi submitted commitments on 3 July 2026; the Commission published them for market testing under Article 27(4) of Regulation 1/2003, with comments due by 21 August 2026. For commentary, see Van Bael & Bellis, Life Sciences News and Insights, 9 July 2026.
[10]Turkish Competition Board decisions treating disparagement as unfair competition: No. 02-81/940-387 (Unilever, 2002); No. 05-87/1199-348 (Türk Telekom, 22 December 2005); No. 07-92/1175-459 (MÜYAP, 27 December 2007); No. 07-67/815-310 (Feniks, 2007); No. 16-33/586-257 (Dow, 13 October 2016); No. 20-46/618-270 (automotive glass, 15 October 2020); No. 24-19/433-178 (İSSU, 2024). See also EY Türkiye (1 August 2024) and Gün + Partners (17 December 2024).
[11]Turkish Competition Board, decision of 12 January 2023, No. 23-03/39-16 (EAE Elektrik Asansör / Gersan), para. 63; predecessor decision No. 19-39/603-257 (12 November 2019), annulled by the Ankara 7th Administrative Court.
[12]Turkish lira amounts are converted into euro on the basis of the 2026 average selling rate (annual average foreign-exchange banknote selling rate for 2026) of the Central Bank of the Republic of Türkiye, taken as TRY 52.43/EUR.
[13]Turkish Competition Board, decision of 21 January 2021, No. 21-04/52-21 (Novartis / Roche, Lucentis-Altuzan), paras. 164 and 175; fines of TRY 165,464,716.48 (Novartis, approx. €3,155,917) and TRY 112,972,552.65 (Roche, approx. €2,154,731); annulled by the Ankara 13th Administrative Court, 30 December 2022, E. 2022/2274, K. 2022/2912, under appeal before the Council of State.
