The Italian Competition Authority publishes draft “Guidelines on antitrust compliance” encouraging the adoption of compliance programs

On April 20 the Italian Competition Authority (“AGCM”) launched a public consultation in order to gather comments on its draft “Guidelines on antitrust compliance”.

The document is of huge importance since it provides for the first time the view of the AGCM on how an effective antitrust compliance program should be established and managed. Even more importantly, the draft guidelines show how the Authority will weigh the adoption of compliance programs as a mitigating circumstance at the moment of calculating fines in antitrust investigations. Continue reading “The Italian Competition Authority publishes draft “Guidelines on antitrust compliance” encouraging the adoption of compliance programs”

Reforming EU copyright law through competition enforcement? Waiting for the Commission’s decision in the “Pay-tv” case

These are complicated days for the entertainment industry. While one investigation regarding sports media rights has just been launched by the European Commission, another is coming to an end. I am talking about the so-called “Pay-tv” case, by means of which the Commission is subtly attempting to reform copyright law through competition enforcement. Continue reading “Reforming EU copyright law through competition enforcement? Waiting for the Commission’s decision in the “Pay-tv” case”

Is this a monopoly? Sailing through IP and competition law

Today we talk about IP, antitrust and sailing. Which is a great occasion to escape the files on your desk and envision yourself enjoying warm winds on emerald water.

Sailing, besides being a wonderful way to stay in touch with nature, is an Olympic discipline sailed on different types of boats: at the moment, the official “Olympic Classes” are Laser, Laser Radial, 49er, 49erFX, RS:X, Nacra 17, 470 and Finn. Olympic Classes are selected by World Sailing, the governing body of this sport, and they are subject (in theory) to periodic review. As a consequence, over the years even glorious boats like Star – which has been part of the Olympic program since its initial editions – have been replaced by fancier and foiling ones.

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CJEU (C-179/16, Hoffman-La Roche): infringement of pharmacovigilance obligations may give rise to EU competition law liability

On 23 January 2018, the European Court of Justice (“CJEU”) issued its preliminary ruling in the Hoffman-La Roche case, where it had the chance to address some major issues regarding competition law in the pharmaceutical sector. The request for a preliminary ruling had been referred by the Italian Consiglio di Stato in relation to a cartel case where the Italian Competition Authority had fined Roche and Novartis for a total amount of 180 million euros.

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CJEU (C-230/16, Coty Germany): sales via internet platforms can be prohibited within selective distribution systems

On December 6, the Court of Justice of the European Union (CJEU) delivered its final ruling in the Coty case. This is a landmark judgment, since it will have a strong impact on the internet sales strategies of all those companies that, in order to preserve the quality of their products and ensure their proper use, want to use a selective distribution system. In this regard, it has to be recalled that from the perspective of EU competition law, selective distribution is a distribution system where the supplier undertakes to sell the contract goods or services only to retailers which meet specified qualitative criteria and where these retailers undertake to sell such goods only to final consumers or to other authorised retailers within the territory reserved by the supplier to operate that system.

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The European Commission provides guidance on SEP licensing but leaves open issues

On November 29, the European Commission published its long-awaited “Communication setting out the EU approach to standard-essential patents” (SEPs). The stakeholders were expecting from the Commission in-depth guidance on the definition of fair, reasonable and non-discriminatory (FRAND) terms in the context of SEP licensing. However, the Commission did not address all the open issues, leaving room for continued legal uncertainty on the exact meaning of FRAND. Continue reading “The European Commission provides guidance on SEP licensing but leaves open issues”

SEP licensing and competition law: DOJ and European Commission bless a new “patent-friendly” approach

Recently, the debate on the applicability of competition law to the licensing of standard-essential patents (SEPs) has come to a turning point. Indeed, both the US Department of Justice (DOJ) and the European Commission are making an attempt to provide a final answer to the following questions:

1) should the conduct of SEP-holders be subject to the application of competition law?

2) should standard-setting organisations (SSO) provide guidance on the meaning of “fair, reasonable and non-discriminatory” terms (FRAND), or would that guidance amount to a price-fixing cartel?

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AG Saugmandsgaard Øe provides guidance on the application of EU competition law in the pharmaceutical sector

**Update**: see here the comment on the final judgment of the CJEU.

On 21 September Advocate General Saugmandsgaard Øe provided his Opinion to the CJEU on some key issues regarding competition law in the pharmaceutical sector. The request for a preliminary ruling was referred by the Italian Supreme Administrative Court (“Consiglio di Stato”) in relation to a cartel case where the Italian Competition Authority (“ICA”) fined Roche and Novartis for a total amount of 180 million euros.

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Excessive use of online information collected on third parties’ websites amounts to unfair competition – rules the Shanghai IP Court in the Hantao v. Baidu case in China

Never has information on the internet been as interconnected as it is today. Thanks to the so-called web scraping technology, in which computer programs are used to extract information from different websites, online platforms are able to incorporate related information from different sources into a single webpage so that users can find and utilize desired information in a convenient way. However, the legality to use information collected by others deserves cautious examination, and unfair competition law is one of the aspects to be considered.

In September, the Shanghai Intellectual Property Court issued a second-instance judgment in Hantao v. Baidu case, laying out useful guidelines for assessing whether unauthorized use of information collected by others constitutes an act of unfair competition. Continue reading “Excessive use of online information collected on third parties’ websites amounts to unfair competition – rules the Shanghai IP Court in the Hantao v. Baidu case in China”

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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