U.S. Department of Justice Litigates to Block Two Mergers
The U.S. Department of Justice (“DOJ”) has blocked two mergers in the past several months, in each case after filing a lawsuit against the merging parties. The first case involved a relatively small transaction in the digital tax business involving H&R Block and 2nd Story Software. The second case was the high-profile proposed acquisition by AT&T of rival wireless telephone carrier T-Mobile USA. These cases illustrate an uptick in U.S. merger enforcement and an increased willingness on the part of the DOJ to challenge mergers in court. They also illustrate a resistance on the part of DOJ to accepting concessions proposed by parties seeking to obtain clearance of horizontal mergers.
T [...]
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 [...]
“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 [...]
Little, large and not proven
The big story for British sports fans has been the recent ruling by the Court of Justice of the European Union (ECJ) in the FA Premier League / Karen Murphy case. Effectively, the ECJ has said that British viewers can buy live English Premier League football matches from any pay-TV provider in the EU and yah boo sucks to expensive broadcasting giants like Sky and ESPN.
Mrs Murphy is the landlady of the Red, White and Blue pub in Southsea, Hampshire in southern England. She showed live Premier League football – including 3pm games on a Saturday, which are subject to a media blackout in the UK in a bid to protect attendances at matches – through a Greek satellite system. This broke domes [...]
The Court of Justice Speaks On Licensing Of Satellite Broadcasting
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 [...]
