Recent developments on vexatious litigation and misuse of regulatory procedures under EU competition law

There are some forms of abuse of dominant position which raise significant issues in terms of compliance with the principle of legal certainty. Among such behaviours we can surely include conducts like “vexatious litigation” and “misuse of regulatory procedures” , categories developed by courts and not explicitly found in statutes. When competition authorities launch an investigation based on these conducts, companies have good reasons to get worried.

A new investigation in Italy – ICA v. Telecom Italia

Over the past years, the number of cases based on the “abuse of law” concept have risen, and last week the Italian Competition Authority (ICA) opened a new investigation based on this concept. According to the ICA, Telecom Italia would have abused its dominant position under article 102 TFEU by means of vexatious litigation, misuse of regulatory procedures, margin squeeze and lock-in strategies on the national wholesale market for the access to the ultra-broadband network and on the retail market for the supply of ultra-broadband telecommunication services. The ICA considered Telecom Italia dominant both at wholesale (it owns around 95% of the facilities) and retail level (with a market share of 45,9%).

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High Court rules in favour of the SEP holder and narrows the scope of competition law defence in Unwired Planet vs. Huawei

On 5 April 2017 the High Court of Justice of England and Wales (Hon. Justice Birss) issued its long awaited judgment in the patent dispute between Unwired Planet and Huawei. The ruling is of high relevance, as it is the first decision adopted by a judge in the UK after the CJEU’s judgment in Huawei.

The facts

The trial began in March 2014 when Unwired Planet sued Google, Huawei and Samsung for infringement of five SEPs (and one non-essential patent). Later, Unwired Planet settled with Google and Samsung. Continue reading “High Court rules in favour of the SEP holder and narrows the scope of competition law defence in Unwired Planet vs. Huawei”

Pills of competition law: Aspen, Uber and e-commerce

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These are busy days for EU competition law.

Today, the European Commission has come back to the old good pharmaceutical market and opened an investigation against Aspen for having charged excessive prices on its “off-patent” drugs (the same case has already been decided in Italy by the Italian Competition Authority in 2016, see here). This may be seen as a follow up to Margrethe Vestager’s recent speeches against excessive prices (here and here). However, even more recently, Advocate General Wahl delivered an opinion where he stated that excessive pricing may occur only in regulated markets with high barriers to entry, since in a free and competitive market high prices would attract new entrants and would not give rise to competitive issues (§ 48, see here for further remarks). Therefore, a question arises: where are the barriers to entry in the Aspen case, insofar as Aspen does not own any patent (already expired for years) and third parties are free to access the market? Continue reading “Pills of competition law: Aspen, Uber and e-commerce”

AG Wahl provides guidance to define “excessive prices” under EU competition law

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Some months ago, in a public speech, the EU Competition Commissioner Margrethe Vestager set the antitrust radar against exploitative conducts and, particularly, against “excessive pricing” in the pharmaceutical, energy and hi-tech markets. Her words had a lot of echo in the antitrust community, since the Commission is traditionally reluctant to step against high prices, for many different reasons (essentially, it lacks of resources and expertise to define “fair” prices, if this concept really exists).

In the past days, Advocate General Wahl came back to that topic and, in response to a request for a preliminary ruling, delivered to the CJEU an opinion on the issue of “excessive pricing”. AG Wahl’s reasoning mainly relates to the market concerned by the request for a preliminary ruling, namely the licensing business of collecting societies. However, it shreds some light on one of the most economic issues of competition law, and, if the opinion is confirmed by the Court, it will provide guidance for future investigations. Continue reading “AG Wahl provides guidance to define “excessive prices” under EU competition law”

Restriction of competition by object after Cartes Bancaires: further developments

How to assess whether an agreement between competitors has an anticompetitive object? In general, an agreement is known to be anticompetitive by object (or “per se”) when competitors agree on prices and quantities. However, when an agreement contains pro and anti-competitive features, a balance should be struck and the analysis is more complicated.

This assessment has an enormous impact on the burden of proof lying on competition authorities in antitrust investigations. Indeed, when competition authorities conclude that an agreement is restrictive by object, they do not have to prove the existence of an anticompetitive effect.

For decades, the antitrust community tried to  to make a clear distinction between those agreements, which are restrictive by object and the ones whose effects have to be analysed in more depth. Finally, in the last years courts around Europe have handed down a number of judgments on this issue, trying to limit the frequent recourse by competition authorities to the “object shortcut”.

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On sausages and Facebook/WhatsApp – Germany reforms its antitrust act (part 2 of 2)

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Guest post by Rupprecht Podszun, professor of Civil Law, German and European Competition Law at the University of Düsseldorf *

The German legislator currently amends the competition code so as to update it for the digital economy. This is a pioneering step. After having examined part of the proposed amendments yesterday (see here), this post will describe the new rules for the digital economy.

New rules for the digital economy

The implementation of the directive and the closing of the sausage gap coincided with a heated debate in German media on the power of internet companies, these Voldemorts from the Silicon Valley. Vice-Chancellor Sigmar Gabriel and the head of the influential German media house Axel Springer, Mathias Döpfner, led the campaign against Google & Co. And so, Gabriel’s ministry came up with new rules for the digital economy. Continue reading “On sausages and Facebook/WhatsApp – Germany reforms its antitrust act (part 2 of 2)”

On sausages and Facebook/WhatsApp – Germany reforms its antitrust act (part 1 of 2)

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©Bundeskartellamt


Guest post by Rupprecht Podszun, 
professor of Civil Law, German and European Competition Law at the University of Düsseldorf *

The German legislator currently amends the antitrust act so as to update it for the digital economy. This is a pioneering step. This post will deal with some of the proposed amendments, while the next post (see here) will describe the new rules for the digital economy.

All EU Member States are working on a change of their competition law statutes, and actually should have completed that work by December 27, 2016. They need to implement the EU directive on antitrust damages claims (2014/104/EU) which aims at facilitating damage claims for victims of cartels and other anti-competitive practices that violate Art. 101 and 102 TFEU. At present, a mere handful of Member States has communicated success in amending their laws (see here). Continue reading “On sausages and Facebook/WhatsApp – Germany reforms its antitrust act (part 1 of 2)”

Does IEEE’s IP policy comply with competition law?

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There is a large body of legal and economic literature on standard-essential patents (SEPs) and competition law that focuses on the availability of injunctive relief and strategic behaviour of SEPs’ holders. There is much less literature on the role of standard-setting organisations (SSOs) and their IP policies (I dealt with this topic here).

The IP policies of SSOs became a hot topic in 2015, when the Institute of Electrical and Electronics Engineers (“IEEE”), one of the most relevant SSOs active in the information and communication technology (“ICT”) sector, modified its IP policy with an effort to better clarify the “reasonable and non-discriminatory” (“RAND”) commitments that SEPs’ owners are supposed to accept through the submission of a letter of assurance (“LOA”). Continue reading “Does IEEE’s IP policy comply with competition law?”

When Supermodels Meet Competition Law

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Who said competition law is always about the same old markets?

Last November the Italian Competition Authority dealt with something other than pharmaceutical or telecommunication, as it found that 8 major model agencies set up a price-cartel. The investigation had been opened upon submission of a leniency application by the renowned agency IMG and led to a cumulative fine of 4.5 million euro. The other agencies found liable were Brave, D’management, Elite Model, Management, Enjoy, Major Model Management, Next Italy, Why Not and Women Models. Continue reading “When Supermodels Meet Competition Law”

Competition law in the pharmaceutical sector: Aspen fined for excessive pricing in Italy

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The Italian Competition Authority (“ICA”) has recently found that Aspen Pharmacare had increased the prices for some of its oncohematological drugs up to 1500% and imposed to the South African multinational a 5 million Euro fine for violation of art. 102, letter a) of the TFEU. Aspen has already communicated that it will appeal the decision.

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