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 [...]

It is often said, with good statistical records, that opinions of the Advocate Generals are to a large extent endorsed by the European Court of Justice (“ECJ”). If so, the opinion recently handed down by AG Mengozzi on May 24, 2011 – if and once ultimately upheld by the ECJ – would represent a fundamental step in the (r)evolution of EU antitrust law on abusive exclusionary conducts. As a matter of fact, AG Mengozzi tackles the highly debated (and actually seldom addressed) issue of the standard according to which selective prices applied by dominant companies may be said to run afoul Art. 102.

Unfortunately not yet available in English, the opinion has been probably misperceived by s [...]

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 [...]

The U.S. Department of Justice (DOJ) is seeking to curb the use of so-called “most favored nation”  (MFN) agreements — a common business practice that the DOJ believes can sometimes result in anticompetitive effects when entered into by a dominant firm.  In October of last year, the DOJ commenced an action against Blue Cross Blue Shield of Michigan (BCBSM), a health insurance company, for entering into a series of MFN agreements with hospitals.  The DOJ alleges that the MFN agreements had the effect of limiting competition and protecting the market position of BCBSM.

In the health care context, a MFN provision typically means that a health care provider has agreed with a health insurer th [...]

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 [...]