ARTICLE 102 TFEU: PATENT FILINGS AS AN ABUSE OF DOMINANT POSITION AFTER ASTRAZENECA: THE PATENT–ANTITRUST INTERFACE UNDER A NEW PERSPECTIVE

Abstract On 31 January 2018, the Danish Competition and Consumer Authority adopted a decision1 finding the Swedish company generic distributor CD Pharma in breach of Art. 102(a) Treaty on the Functioning of the European Union (TFEU) by abusing its dominant position and having imposed excessive and unfair prices for the drug Syntocinon. The company increased the price of the drug by 2000% in the period April-October 2014 in the Danish pharmaceutical market. CD Pharma appealed to the Danish Competition Appeals Board,2 which on 29 November 2018 upheld the decision by the Authority. On subsequent appeal to the Danish Maritime and Commercial Court,3 the judgment by the previous court was upheld in a 3-2 decision on 2 March 2020, thus finding CD Pharma liable for infringement of Danish competition law as well as Art. 102(a) TFEU. The decision is final and not subject to further appeal. The case raises outstanding legal-economic issues regarding excessive pricing such as relevant market definition in pharmaceutical cases, the length of abuse, competitive price benchmarks, definition of economic value and the matter of dominance in public procurement and tenders. The case is rather unusual in that the alleged abusive period amounted to a six-month period, CD Pharma was the ‘losing’ party in the bidding process for the supply of the medicine in question, and CD Pharma subsequently had reduced prices through negotiations with the Danish central medicine procurer, Amgros. Similar to the Aspen Pharma decision4 by the Italian Competition Authority, where the Italian Medicine Agency (AIFA) reported the case to the Competition Authority, it was the Danish medicine procurer Amgros who had notified the Danish Competition and Consumer Authority about allegedly abusive practices. This subsequently led to an investigation and the adoption of the Decision. Following an introduction describing the Danish pharmaceutical market and specifics of the case, section two of this contribution details the proceedings at Danish Competition Authority. Section three depicts the proceedings at Competition Appeals Tribunal, and section four deals with the proceedings at the Maritime and Commercial Court. Section five concludes.

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Digital Economy, Big Data and Competition Law

Market and Competition Law Review ◽

10.7559/mclawreview.2019.315 ◽

2019 ◽

Vol 3 (1) ◽

pp. 53-89

Author(s):

Roberto Augusto Castellanos Pfeiffer

Keyword(s):

Big Data ◽

Data Protection ◽

Personal Data ◽

Competition Law ◽

Digital Economy ◽

Data Driven ◽

Dominant Position ◽

Privacy Concerns ◽

Sense Data ◽

Abuse Of Dominant Position

Big data has a very important role in the digital economy, because firms have accurate tools to collect, store, analyse, treat, monetise and disseminate voluminous amounts of data. Companies have been improving their revenues with information about the behaviour, preferences, needs, expectations, desires and evaluations of their consumers. In this sense, data could be considered as a productive input. The article focuses on the current discussion regarding the possible use of competition law and policy to address privacy concerns related to big data companies. The most traditional and powerful tool to deal with privacy concerns is personal data protection law. Notwithstanding, the article examines whether competition law should play an important role in data-driven markets where privacy is a key factor. The article suggests a new approach to the following antitrust concepts in cases related to big data platforms: assessment of market power, merger notification thresholds, measurement of merger effects on consumer privacy, and investigation of abuse of dominant position. In this context, the article analyses decisions of competition agencies which reviewed mergers in big data-driven markets, such as Google/DoubleClick, Facebook/ WhatsApp and Microsoft/LinkedIn. It also reviews investigations of alleged abuse of dominant position associated with big data, in particular the proceeding opened by the Bundeskartellamt against Facebook, in which the German antitrust authority prohibited the data processing policy imposed by Facebook on its users. The article concludes that it is important to harmonise the enforcement of competition, consumer and data protection polices in order to choose the proper way to protect the users of dominant platforms, maximising the benefits of the data-driven economy.

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An Overview of the New Competition Law: Issues for the Oil and Gas Industry

Alberta Law Review ◽

10.29173/alr719 ◽

1987 ◽

Vol 26 (1) ◽

pp. 59

Author(s):

Lawson A. W. Hunter ◽

John F. Blakney

Keyword(s):

Joint Ventures ◽

Oil And Gas ◽

Competition Law ◽

Oil And Gas Industry ◽

Gas Industry ◽

Dominant Position ◽

Abuse Of Dominant Position ◽

Restraint Of Trade

This paper reviews the major changes to Canada's competition law enacted in 1986, including new merger and abuse of dominant position provisions, the establishment of a Competition Tribunal, mandatory pre-notification of certain transactions, and revisions of the prohibition against agreements in restraint of trade. Special attention is given to joint ventures, export agreements and vertically integrated resource companies.

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Predatory pricing as a type of exclusionary abuse of dominant position in case law of courts of European Union

Zbornik radova Pravnog fakulteta Novi Sad ◽

10.5937/zrpfns52-19475 ◽

2018 ◽

Vol 52 (3) ◽

pp. 1059-1074 ◽

Cited By ~ 1

Author(s):

Sandra Fišer-Šobot

Keyword(s):

European Union ◽

Case Law ◽

Predatory Pricing ◽

Dominant Position ◽

Abuse Of Dominant Position

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Chimera of domestic antitrust: Institute of collective dominance in Russia

Voprosy Ekonomiki ◽

10.32609/0042-8736-2021-7-68-88 ◽

2021 ◽

pp. 68-88

Author(s):

A. E. Shastitko ◽

K. A. Ionkina

Keyword(s):

Law Enforcement ◽

Market Analysis ◽

Legal Norm ◽

Economic Regulation ◽

Dominant Position ◽

Oligopoly Theory ◽

Russian Version ◽

Competition Law Enforcement ◽

Abuse Of Dominant Position ◽

Collective Dominance

The paper defines the features of the collective dominance institute in Russia as well as the relation between collective dominance and oligopoly in the spheres of law and economic theory. The article evaluates the grounds and consequences of the collective dominance legal norm application; it suggests an approach to examining the relation between effects and expected results of this legal norm application and outlines the potential ways to harmonize the best international practices of the collective dominance norm application with the existing economic standards of product market analysis for the purpose of competition law enforcement. Results of the oligopoly theory and the Russian version of collective dominance institution key elements comparison show: the collective dominance institution concept is inadequately applied to identify individual abuse of dominant position due to possible law enforcement errors. The Russian version of collective dominance institution reflects one fundamental tendency intrinsic to Russian antitrust: examined more closely, law enforcement, which is de jure aimed at protecting competition, appears to be economic regulation, which de facto can lead to competition restriction. One of the possible structural alternatives for the collective dominance institution reforming is based on presumption of the need to analyze the joint impact exerted by a group of undertakings on the market.

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