BREAKING: the CJEU sets new criteria to assess excessive pricing under competition law

Yesterday the Court of Justice of the European Union ruled on one of the hottest antitrust issues of 2017: excessive pricing.

It was Commissioner Vestager in late 2016 who set the antitrust radar of the European Commission on these conducts, which were considered a bit like unicorns until last year: traces of them were visible only on old handbooks. Following the Commissioner’s speech, the European Commission launched an investigation against Aspen Pharma for alleged excessive pricing in May 2017 (everywhere but in Italy, where Aspen had already been fined by the Italian Competition Authority, see here).

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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”

Punitive damages slipping into IP enforcement in Europe?

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The U.S. is known to have a regime of punitive damages in many different areas of law. This concept has however not won any significant ground in Europe, where one usually is allowed to be awarded only the actual damages suffered.

Last week, the CJEU handed down a quite remarkable judgment on damages in IP infringement cases (case C-367/15). The Polish Supreme Court had sought guidance from the CJEU on how to interpret the Enforcement Directive (2004/48/EC).

Poland had a national provision, which provided an alternative for an IP holder to seek damages corresponding to two or three times of a hypothetical license fee. The question was whether the Polish national provision could be seen to be compatible with EU law. The Advocate General (AG), in essence, answered in the negative (AG opinion). But the CJEU took a different approach. The CJEU concluded that the Enforcement Directive does not as such preclude a provision allowing for an IP holder to claim twice the amount of a hypothetical license fee. In its reasoning, the CJEU inter alia referred to international instruments (TRIPS, Berne, Rome) and also emphasized the fact that the Enforcement Directive is a minimum standard directive.

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