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The Commission’s Proposal to revise the EU Pharmaceutical legislation is finally published

In brief

Today the European Commission has finally published its Proposal to revise the EU Pharmaceutical legislation, the most momentous reform for over 20 years. This is an eagerly anticipated overhaul of the EU’s pharmaceutical system that has generated a lot of debate and concern since earlier leaked documents showed the far-reaching effect of the measures that were being considered and the impact these could have on the industry

The review is part of the EU’s Pharmaceutical Strategy for Europe, and its aim is to make medicines more available, accessible and affordable whilst at the same time supporting innovation and boosting the competitiveness of the EU pharmaceutical industry.  

The proposal consists of two legislative initiatives: 

  • new Regulation replacing and amending current Regulation (EC) No 726/2004
  • new Directive replacing and amending current Regulation 2001/83/EC

It also includes a Council Recommendation on antimicrobial resistance.

Key elements of the proposal

Modulated system of incentives

One of the most significant elements of the Commission’s Proposal is the reform of the incentives for innovation. 
The Proposal foresees a two-year reduction of the standard period of regulatory data protection (the Commission clearly noting that it aims to promote faster availability of generics and biosimilars). In exchange, there will be opportunities for additional periods of data protection when certain conditions are met: 

  • Two additional years1 of data protection if the medicine is released and supplied in sufficient quantity and in the presentations needed to meet demand in all Member States covered by the marketing authorization within two years from the date the marketing authorization was granted (or within three years for SME’s, (groups of) entities with less than five centralized marketing authorization’s or non-profit entities).
  • Six additional months2 of data protection if the medicine addresses an unmet medical need.
  • Six additional months of data protection for medicines containing a new active substance, where comparative clinical trials are conducted.
  • One additional year of data protection for a new therapeutic indication approved during the period of data protection and if supported by data that shows a significant clinical benefit over existing therapies. This prolongation may only be granted once.

The current two years of market protection will be preserved following the expiration of the data protection period.

Orphan market exclusivity

For orphan medicines, the standard period of orphan market exclusivity is reduced from ten to nine years. Well established use orphan medicinal products will be granted five years. 

Additional periods of orphan market exclusivity may be available under specific circumstances. 

  • One additional year for medicines addressing a high unmet medical need.
  • One additional year if the medicine is released and supplied in sufficient quantity and in the presentations needed to meet demand in all Member States covered by the marketing authorization within two years from the date the marketing authorization was granted (or within three years for SME’s, (groups of) entities with less than five centralized marketing authorizations or non-profit entities).
  • One additional year for a new indication of an already authorized orphan medicine. This prolongation may be granted twice if the new therapeutic indications are for different orphan conditions

The Commission is keen to flag that if these conditions are met orphan market exclusivity periods can add up to maximum 13 years while today the maximum is period of orphan market exclusivity is ten years.

However, the devil lies in the detail when examining these provisions and it will be important to carefully examine the definitions of unmet medical need and high unmet medical need provided in the Proposal as well as the requirement to release and supply in sufficient quantity. 

Access to medicines

The Proposal aims to ensure equitable access to medicines across all Member States and introduces in that regard an obligation on marketing authorization holders to ensure appropriate and continued supplies of their medicinal products as well as stronger and earlier reporting obligations. 

There is also strong emphasis on addressing shortages and ensuring security of supply. Marketing authorization holders have a duty to prepare and keep up to date shortage prevention plans for their medicines and competent authorities shall draw up lists of critical medicinal products. 

Other significant measures 

Other measures foreseen in the Proposal include a simplified committee structure within EMA and faster authorization procedures. 

There are also a large number of provisions aimed at ensuring protection of the environment, as well as measures to encourage prudent use of antimicrobials, including the much-debated transferable data exclusivity voucher for priority antimicrobials.

What next?

The Commission’s Proposal initiates the legislative process. It will now be discussed by the Parliament and the Council. The Commission notes that the discussions will start “as soon as possible” but that it is not possible to predict the timing of adoption at this stage. 

The EU HTA Regulation3 took almost four years to adopt: Certain aspects proved to be very controversial, but it had a narrow scope. This reform has a much wider scope and opposing views between Member States are emerging. It should be no surprise if its passage through the institutions takes longer.   

We will be scrutinizing the Commission’s Proposal in greater detail in the days to come and providing further updates. 

1 Up from 1 year compared to what was foreseen in the leaked draft proposal.

2 Down from 1 year compared to the leaked draft proposal.

3 REGULATION (EU) 2021/2282 of the European Parliament and the Council of 15 December 2021 on health technology assessment and amending Directive 2011/24/EU.


Els Janssens is a Counsel in commercial law, litigation and healthcare regulatory issues in the Brussels office. Els worked as a senior regulatory legal counsel for Johnson & Johnson supporting the company's global safety operations and advising on regulatory issues in relation to specific medicinal products. Els also worked as legal advisor in the European Medicines Agency where she advised management, scientific committees, CMD(h) and the European Commission on a wide variety of issues in connection with authorisation procedures, submission requirements, pharmacovigilance obligations and procedures as well as inspections. Based in Abu Dhabi from 2014 to 2019, she advised both multinational medical devices and pharmaceutical clients on healthcare regulations in the EU and UAE.


Julia joined Baker McKenzie's London office as a trainee in 2005, qualifying in 2007, with a secondment to the Singapore office, and has shaped her practice to focus exclusively on regulatory matters affecting the Healthcare & Life Sciences industry.

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