Kluwer Competition Law Blog

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 [...]

On October 4, the European Court of Justice rendered its judgment in Premier League v QC Leisure. For a discussion of the background to the case and the opinion of the Advocate General see here. The Court concludes that blocking the importation of Greek pay-TV decoders into the UK restricts the freedom to provide services without justification on grounds of IP protection. The Court also holds that a contractual prohibition to sell the decoders outside Greece infringes Article 101 TFEU. At the same time, the Court makes clear that it does not challenge the possibility to conclude exclusive, territorially limited broadcasting licenses. The Court’s reasoning – unlike the Advocate Gener [...]

The European Court of Justice is expected to render its judgment in Premier League v QC Leisure in the next few months. At the heart of the case, lies the question whether licensing of intangible media content in one EU Member States exhausts the rights to that content across the EU. The answer of the Court of Justice will have important implications beyond the case at hand.

Advocate General Kokott rendered her opinion on the case on February 3, 2011. She proposes that the licensing of intangible content should be subject to exhaustion in the same way as the sale of physical products. If upheld, that conclusion would have serious repercussions for the licensing of all intangible conten [...]

In its recent TeliaSonera judgment, the Court of Justice discusses whether a margin squeeze can only be abusive if the dominant company has a duty to supply the input at issue. The Court concludes that a duty to supply is not needed. The judgment, however, does not offer a clear definition of the scope for the rules governing a duty to supply under Article 102 TFEU. A finding of an abusive refusal to supply is subject to higher legal hurdles than other forms of abuse. Notably, as the Court of Justice made clear in Bronner, it must be shown that the relevant input is indispensable, such that its refusal would eliminate all viable competition on the relevant market. The question in which [...]

In a recent judgment of December 15, 2010, the General Court had an opportunity to discuss the competitive analysis of aftermarkets. At issue in that case were complaints by independent watch repairers that they were unable to obtain spare parts from manufacturers of luxury watches. The Commission rejected these complaints inter alia on the ground that there was competition in the primary market for luxury watches and therefore no reason for concerns on the aftermarket for repair of such watches. The Court disagreed with the Commission and annulled the Commission’s rejection decision. The Court considered that the Commission had not properly assessed whether sales of luxury watches and s [...]

In my last post, I discussed the General Court’s findings on market definition and dominance analysis in its AstraZeneca judgment. In this post, I review the Court’s findings on abuse.

In its decision, the Commission held that Astra had abused its dominant position (1) by providing patent authorities misleading launch date information when applying for a special protection certificate for Losec and (2) by withdrawing its marketing registration for an older version of Losec in certain Member States to impede generic producers and parallel traders.

The Court largely confirmed these conclusions. The Court’s findings shed new light on the principles that govern the interaction of domi [...]