Italian Competition Authority Challenges Patent Measures
The Italian Competition Authority started the New Year with a bang by imposing a fine of more than EUR 10 million on Pfizer for alleged abuses of the patent system in violation of Article 102 TFEU. The decision is available here.
The Authority’s decision goes considerably further than the General Court’s AstraZeneca judgment in qualifying patent related conduct as abusive. The Authority does not identify aspects of Pfizer’s conduct that went beyond the use of legal instruments provided by the patent system. Instead, the Authority appears to suggest that reliance on such patent instruments can in itself constitute an abuse. This contrasts with AstraZeneca where the conduct at issue [...]
Economic evidence and analysis at the early stages of EU merger control proceedings
“In appropriate cases, DG Competition may discuss in advance with the addressees or other affected parties the scope and the format of the Data Request. DG Competition may also explain the analysis that it intends to perform with the requested data in order to improve the efficiency of the data collecting process and to ensure the data is of adequate quality. This is particularly the case in the later stages of an investigation as early requests could be of a more general nature and aimed primarily at better understanding the functioning of the market in question.”
The language above is quoted from paragraph 55 of the Commission’s Best Practices on submission of economic evidence, th [...]
The Dongfeng Nissan Case and the Gaps of China’s Competition Law Regime in Tackling Vertical Restraints
The recent Dongfeng Nissan Case shed some interesting lights on the status of vertical restraints rules in China, three years after China’s Anti-Monopoly Law (AML) became effective in August 2008. Currently, China’s competition law regime is still insufficiently equipped to assess and deal with vertical restraints, in spite of frequent complaints on alleged anticompetitive vertical restraints in the Chinese market.
For example, car manufacturers in China typically prohibit authorized car parts suppliers from selling genuine car parts to independent repairers or distributors. Genuine car parts are often exclusively distributed through authorized car dealers, which both sell new cars and [...]
“Thanks Nicolas Sarkozy, but no thanks.” CJEU rules on status of Protocol on Internal Market and Competition
When the EU leaders agreed on the final version of the Lisbon Treaty, one particular amendment caused turmoil in the European competition law community. The Lisbon Treaty repealed the 50-year-old commitment to “undistorted competition”, embedded in the fundamental provisions of the EC Treaty (Article 3(1)(g) EC), and moved it to a Protocol annexed to the Treaties.
French president Nicolas Sarkozy secured the change. The suppression of the reference to undistorted competition originated in the aborted Treaty on a Constitutional for Europe, which for the first time expressed competition as an objective in its own right (rather than an activity). Sarkozy opposed, arguing that the belief in [...]
The Commission’s Best Practices for the Submission of Economic Evidence: Improved, but still lacking in key areas
On 17 October, the Commission published a revised version of its Best Practices for the submission of economic evidence and data collection in competition cases (“BP”). The first version of the BP, published in January 2010, included guidance on issues such as the way relevant questions in economic submissions should be formulated, choice of methodology, reporting the results, conducting robustness checks, and responding to requests for quantitative data. Compared to the initial draft, the new version of the BP contains relatively few changes. However, the changes that have been made are worth noting.
The most important addition to the new version is the inclusion of some guidance on con [...]
U.S. FTC Scrutinizes Interplay Between Authorized Generics and Patent Settlements
The U.S. Federal Trade Commission has recently released two reports relating to the pharmaceutical industry. A significant theme in both reports is a concern that brand name pharmaceutical companies are using the threat of launching an authorized generic to make deals that delay generic entry. These reports shine a spotlight on the interplay between authorized generics and pharmaceutical patent settlements, and indicate strong FTC opposition to a practice that has never been found unlawful.
Report on Authorized Generics
On August 31, the FTC issued its final report analyzing the competitive significance of authorized generics. In the U.S., generic pharmaceutical products are typically sold b [...]
