International antitrust cooperation in the age of Trump

It is August, many of you are in vacation or will go soon. Thus, it is the right time for a policy topic, something light but forward-looking to be enjoyed while sipping an ice tea in the middle of your daily Linkedin journey (I know you do that).

International cooperation in antitrust law: where we stand

The topic is international cooperation in antitrust procedures. It is commonly known that competition law is normally national or regional in scope, and no binding international treaties are currently in place. This is true for both substantial and procedural rules and is a major difference from other fields of law such as IP law. Although the OECD and the International Competition Network (ICN) provide for guidelines and recommendations with the aim to harmonise competition law worldwide, these soft law tools are not mandatory for national enforcers. Continue reading “International antitrust cooperation in the age of Trump”

Do data generated by connected cars raise antitrust risks?

In these days the European Commission is particularly active in understanding the possible antitrust impact of data-related conducts. In particular, from a recent policy document published by the Commission and from statements released by DG Comp´s official, it emerges that data generated by automated and connected cars might be considered an “essential facility” from a competition law perspective, at least in the early stage of the industry development, with the consequence that access to these data could not be refused to third parties. Consequently, manufacturers of automated and connected cars which refuse to license these data under fair terms to providers of cars-related services (i.e.: insurers, repairers, leasing companies) might be in breach of article 102 TFEU.

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Blockchain and antitrust: why companies should be cautious

Over the last months blockchain and bitcoin have been the subject of lively public discussions on whether blockchain is the technology of the future and cryptocurrencies are going to be just a speculative phenomenon or something more. However, little has been said so far on blockchain from an antitrust perspective, probably because new technologies require some time to be digested and elaborated by competition authorities. Continue reading “Blockchain and antitrust: why companies should be cautious”

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.

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

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”

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.

Continue reading “AG Saugmandsgaard Øe provides guidance on the application of EU competition law in the pharmaceutical sector”

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

uber

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”