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

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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“Annual Competition Act” with lowered merger notification thresholds and other pro-competitive measures approved in Italy

On 2 August 2017, the Italian Parliament enacted the so called “Annual Competition Act”, an Act which is supposed to be approved every year by the Legislator in order to adopt measures that should boost competition on the market. Why is that? Under the Italian Competition Act, the Italian Competition Authority submits an yearly official report to the Presidency of the Council to identify all the pre-existing or emergent legislative measures that create restrictions on competition and to suggest possible solutions. After examining the report, the Government delivers a draft law to the Parliament which will discuss, amend and approve it.

The new law significantly lowers the existing merger notification turnover thresholds. As a consequence, the new thresholds which trigger a mandatory filing to the Italian Competition Authority are:

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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)”