Shortly after revealing proposed amendments to the Competition and Consumer Protection Act (for details, please see my post from May 22), the Polish Competition Authority (the President of the Office for Protection of Competition and Consumers) published draft guidelines on commitment decisions (“Guidelines”).
Since PCA nowadays uses commitment decisions increasingly often (125 such decisions were adopted in 2011, being 35 more than in the previous year), it is important for the undertakings operating in Poland to have a clear guidance on how to offer commitments and avoid fines. This post is an attempt to identify possible key practical consequences of the new policy of the PCA, as they [...]

In a judgment handed down today (C-158/11 Auto 24), the EU Court of Justice (“CJEU”) confirmed that suppliers operating selective distribution systems (“SDSs”) are under no obligation to publish the criteria used to appoint distributors, and that a car manufacturer using a SDS based on quantitative criteria is under no obligation to apply these criteria in a uniform manner, or to ensure that these criteria are objectively justified. Whilst the proceedings relate to a case brought in respect of the Motor Vehicle Block Exemption Regulation (MVBER), the CJEU’s judgment may have meaning for the assessment of other types of SDSs.

At a time when selective distribution is under attack from the lobb [...]

Cross-border antitrust enforcement issues are back on the agenda. The recent Toshiba judgment of the European Court of Justice (“ECJ”) has confirmed a number of principles governing the network enforcement system set forth in the EU by Regulation 1/2003. Recent national decisions involving the same companies and/or closely related sectors (e.g., the flour milling industry) testify of the dynamic cooperation among national competition authorities (“NCAs”). Yet, lasting uncertainties remain. In Toshiba, the ECJ has largely left open the ne bis in idem question and the reliance on the cooperation mechanisms provided for by Regulation 1/2003 – i.e., the cross-border exchange of inf [...]

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 [...]

The past decade has seen a flurry of articles published trying to make sense of the degree of control that the EU Courts exercise on complex economic reasoning. By contrast, much less has been written about the Courts’ unlimited jurisdiction on fines, which allows them to increase or decrease the financial sanctions imposed by the Commission (See Article 261 TFEU and Article 31 of Regulation No 1/2003). This is probably due to the fact that for the past 50 years, such unlimited jurisdiction has been living a quiet life indeed. Over this period – and especially during the last three decades – the EU Courts have wielded this powerful tool with great caution, or at least with significan [...]

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 [...]