Kluwer Competition Law Blog

Everybody at America Movil (”AM”) – and especially its owner, Mr.Carlos Slim – should have welcomed with a sense of relief the (somehow unexpected) turn in the saga which started last year when the Mexican Federal Competition Commission (“CFC”) hit AM’ mobile telephony unit Telcel with the largest fine in the history of Mexico: almost 1 billion USD.

The facts of this case are clear. Telcel has a share of 70% of the mobile telephony market in Mexico, lower only to its share on the land lines market, which is of 80% (!).  From this position Telcel charged overpriced tariffs for interconnection with other land-line and mobile telephony operators. Telcel benefited twice from this [...]

The feud between the Chinese Internet companies Qihoo 360 Technology Co., Ltd. (‘Qihoo 360’) and Tencent Inc. (‘Tencent’) has been simmering for nearly two years. This article spotlights the facts and major issues of the dispute.

The Facts

Tencent runs QQ, the most popular instant messaging (‘IM’) service in the mainland China with over 700 million active users by the end of 2011. Tencent also provides information security products, search engine, online media, gaming, interactive entertainment, e-commerce, etc. Qihoo 360 is China’s leading Internet security product and service provider and had over 400 million active users by the end of 2011.

Tencent and Qihoo 360 offer rival [...]

Steffano Grassani wrote a thoughtful response to my post on the Italian Pfizer decision. His discussion helps to crystallize some of the key issues raised by the case that merit some further consideration. Clearly, Steffano is right that misleading patent authorities is not the only possible patent related abuse. However, it must also be true that mere use of lawful patent instruments, such as divisional filings or applying for an SPC, cannot in itself constitute an abuse. Additional elements are needed that justify treating such conduct as unlawful under competition rules.

In the case of a refusal to license, high legal hurdles must be met for applying Article 102 TFEU. In the case of t [...]

In his last blog, Thomas Graf pointed out, as brilliantly and persuasively as he customarily does, the key features and implications of the Jan. 11, 2012decision of the Italian Antitrust Authority (“IAA”) in the Pfizer case, coming to the conclusion that

“The intervention of the Italian Authority therefore expands the application of Article 102 TFEU to patent related conduct in a manner that deprives Article 102 TFEU of meaningful limiting principles. It does not identify improper conduct that is distinct from and goes beyond the lawful use of patent instruments provided by the patent system. If the decision were to stand this would therefore considerably increase legal uncertainty and p [...]

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 [...]