scholarly journals Anticompetitive Patent Settlements – Where Are We Ten Years After the European Commission’s Pharmaceutical Inquiry?

2020 ◽  
Vol 12 (21) ◽  
pp. 129-159
Author(s):  
Anna Laszczyk
Keyword(s):  
European Commission ◽  
Market Entry ◽  
Case Law ◽  
Pharmaceutical Products ◽  
Final Report ◽  
Dominant Position ◽  
A Value ◽  
Generic Company ◽  
Market Practices ◽  
The Eu

In 2009, the European Commission published a final report on its market inquiry into the pharmaceutical sector. The report revealed the authority’s concerns regarding market practices of pharmaceutical originator companies aimed at delaying the market entry of cheaper generic pharmaceutical products. One of the delaying practices identified by the European Commission were patent settlements between an originator and a generic company including: (i) a value transfer from the originator to a generic company, and (ii) an obligation of a generic company not to enter the market. These patent settlements were called pay-for-delay agreements since the payment was allegedly made in exchange for the non-market entry obligation. The European Commission continued the investigation of patent settlements by its continuous monitoring. It also initiated antitrust proceedings that terminated with huge fines imposed on pharmaceutical companies. The appeals are now pending before the EU courts. Ten years after the publication of the final report on the market inquiry, this article aims to summarise the development of the case law and provide its critical analysis. The article focuses on the analysis of pay-for-delay agreements as infringements of Article 101 TFEU only and does not consider the conclusion of these agreements as an abuse of a dominant position.

Long Awaited Guidance on the Meaning of “Regulatory Act” for Locus Standi Under the Lisbon Treaty

2012 ◽  
Vol 3 (1) ◽  
pp. 115-122
Author(s):  
Camilla Buchanan
Keyword(s):  
European Union ◽  
European Commission ◽  
Case Law ◽  
Lisbon Treaty ◽  
The European Union ◽  
General Application ◽  
Locus Standi ◽  
Legal Standing ◽  
The Eu

Case T-262/20 Microban International Ltd and Microban (Europe) Ltd v. CommissionThe conditions for bringing direct actions before the EU General Court have been opened under Article 263, fourth paragraph, of the Treaty on the Functioning of the European Union (“TFEU”) through the introduction of less restrictive rules on legal standing for private applicants challenging regulatory acts. The term “regulatory act” covers all acts of general application apart from legislative acts and includes implementing measures adopted by the European Commission under the comitology procedure. Initial case law provides welcome guidance on the application of the new rules on standing but questions still remain (author's headnote).

scholarly journals Commitment Decisions: Is the Sky the Limit? - Commentary to Judgment of the General Court (Eighth Chamber) of 15 September 2016, Case T-76/14, Morningstar, Inc. v European Commission

2017 ◽  
Vol 1 (2) ◽  
pp. 195-212
Author(s):  
Rita Leandro Vasconcelos
Keyword(s):  
European Union ◽  
European Commission ◽  
Judicial Review ◽  
Case Law ◽  
The European Union ◽  
Dominant Position ◽  
Court Of Justice ◽  
Article 9 ◽  
Abuse Of Dominant Position ◽  
Limited Scope

In its judgment of 15 September 2016, the General Court ruled on whether the commitments offered by Thompson Reuters to the European Commission during an investigation of a possible abuse of dominant position were sufficient to address the competition concerns identified by the Commission. This is only the second time the Court of Justice of the European Union ruled on Commission decisions rendering binding the commitments offered by an undertaking Article 9 of Regulation 1/2003. With regard to standing, the General Court ruled the appeal lodged by a competitor admissible. As for substance, the General Court generally confirmed the previous case law. It ruled on the commitments meet the competition concerns identified by the institution, the different proportionality standard in Article 9 decisions as compared to Article 7 Regulation 1/2003 decisions (formal decision finding an infringement), and the limited scope of judicial review of the Court of Justice of the European Union in these appeals.

7. Article 102 TFEU: Conduct Which Can Be an Abuse

2019 ◽  
pp. 359-581
Author(s):  
Alison Jones ◽  
Brenda Sufrin ◽  
Niamh Dunne
Keyword(s):  
Member State ◽  
Market Power ◽  
Price Discrimination ◽  
Case Law ◽  
Digital Economy ◽  
Exclusive Dealing ◽  
Dominant Position ◽  
Legal Proceedings ◽  
Article 102 Tfeu ◽  
The Eu

This chapter discusses the difficult concept of what constitutes an ‘abuse’ of a dominant position for the purposes of Article 102 and whether conduct should be condemned on account of the form it takes or only for its effects. It considers the case law of the EU Courts, the decisional practice of the Commission, and the Commission’s Guidance Paper on enforcement priorities, and the problem of distinguishing competition on the merits from illegimate conduct. The chapter looks at the different classifications of abuse, particularly exclusionary and exploitative abuses; the distinction between form- and effects-based approaches to types of abuse; the leveraging of market power between distinct markets as a theory of harm; the objective justification defence; and general issues in respect of abuses concerning prices, including the ‘as efficient competitor’ test. The chapter then examines the application of Article 102 to various forms of conduct, including: price discrimination; predatory pricing; selective low pricing; margin squeeze; exclusive dealing;; tying and bundling; refusal to supply; self-preferencing; malicious pursuit of legal proceedings; ‘regulatory gaming’; discrimination abuses; unfairly high and low pricing; hindering inter-Member State trade; and more novel claimed abuses within the digital economy.

Part IV The Rights of Defence, 11 An Overview of the Rights of Defence in EU Antitrust Proceedings

2020 ◽  
Author(s):  
Scordamaglia-Tousis Andreas
Keyword(s):  
European Commission ◽  
Case Law ◽  
Fundamental Rights ◽  
Eu Law ◽  
Form Part ◽  
Procedural Rights ◽  
The Eu

This chapter studies the notion of the rights of defence, providing an overview of those rights and tracing their evolution through the case law of the EU Courts. The rights of defence form part of a category of procedural rights that are of particular importance in EU antitrust proceedings. It is settled case law that the rights of defence in any proceedings in which fines or penalty payments may be imposed, such as those provided for in Regulation 1/2003, are fundamental rights forming an integral part of the general principles of EU law. A violation of a right of defence on behalf of the European Commission can have significant repercussions on Commission decisions finding an infringement of EU antitrust rules, the available remedies varying from a complete annulment of the decision to partial annulments and, exceptionally, fine reductions. It is therefore of no surprise that alleged violations of the rights of defence are systematically invoked as grounds for annulment of Commission decisions before the EU Courts, particularly given that infringements of antitrust rules may lead to the imposition of fines that, due to their severity, are now widely considered to be of criminal nature.

scholarly journals National gambling policies and the containment of the EU’s politico-legal influence

2019 ◽  
Vol 36 (2) ◽  
pp. 77-90
Author(s):  
Jani Selin
Keyword(s):  
European Commission ◽  
Early Period ◽  
Case Law ◽  
The European Union ◽  
Member States ◽  
Legal Cases ◽  
Law And Policy ◽  
Owned Company ◽  
Gambling Policy ◽  
The Eu

Aims: Research has shown that the EU’s politico-legal influence over member states is contained through two political strategies: contained compliance and anticipatory obedience. Previous studies on gambling policies in the EU have quite uncritically presumed that the EU is capable of inducing changes, or even forcing changes, in national gambling policies. In this article, the objective was to investigate whether member states have adopted the two strategies allowing a containment of the EU’s influence on their national gambling policies. Design: The politico-legal influence of the Court of Justice of the European Union (CJEU) and the European Commission on national gambling policy is analysed in the case of Finnish monopoly-based gambling policy. The analysis is based on case law and policy documents. Results: The results indicate that Finland has adopted both anticipatory obedience and contained compliance when striving to safeguard its gambling monopoly system. Contained compliance was adopted during the early period of Finland’s accession (1995–2001). Anticipatory obedience was exercised between the years 2004 and 2013, a period characterised by several critical legal cases and the infringement procedure commenced by the European Commission against Finland. During the third period (2014- 2017 ), when the merger of three monopoly operators into a single state-owned company was on the agenda, neither strategy was adopted, indicating little EU influence (despite public justifications of the same). Conclusion: The EU’s opportunities to induce changes in the gambling policies of member states should not be overemphasised because member states are able to contain the EU’s politico-legal influence. Future analyses of national gambling policies in the EU would benefit from taking the interaction between member states and the EU into account.

The EU Citizenship Directive: A Commentary

2019 ◽  
Author(s):  
Elspeth Guild ◽  
Steve Peers ◽  
Jonathan Tomkin
Keyword(s):  
Member State ◽  
Detailed Analysis ◽  
European Commission ◽  
Case Law ◽  
Free Movement ◽  
European Economic Area ◽  
Court Of Justice ◽  
Economic Area ◽  
The Right ◽  
The Eu

The EU Citizenship Directive defines the right of free movement for citizens of the European Economic Area. It applies to EU citizens and their family members who move to visit or reside in another Member State. This might at first seem like a straightforward definition, but immediately questions arise. Who determines if a person is an EU citizen at all? What about dual citizens of two Member States, or of one Member State and a non-Member State (a ‘third State’)? What is the position of EU citizens who move to one Member State, and then return to their home Member State? This book provides a comprehensive commentary of the EU’s Citizens’ Directive tracing the evolution of the Directive’s provisions, placing each article in its historical and legislative context. Special emphasis is placed on highlighting the connections and interactions between the Directive’s constituent provisions so as to permit a global appreciation of the system of free movement rights to which the Directive gives effect. Each provision is annotated containing a detailed analysis of the case law of the Court of Justice as well as of related measures impacting upon the Directive’s interpretation including European Commission reports and guidelines on the Directive’s implementation.

scholarly journals Η καταχρηστική εκμετάλλευση δεσπόζουσας θέσης στο ενωσιακό και στο ελληνικό δίκαιο

2015 ◽  
Author(s):  
Αικατερίνη Μπουσούνη-Πυλιώτη
Keyword(s):  
Consumer Welfare ◽  
Case Law ◽  
Trade Mark ◽  
Economic Analysis Of Law ◽  
Dominant Position ◽  
Effective Competition ◽  
Glaxo Smithkline ◽  
Grand Chamber ◽  
The Relationship ◽  
The Eu

My thesis consists of two parts. In part Α mainly analyzes the Article 102 TFEU, theabuse of an individual dominant position, the collective dominant position, and Article101par.1 TFEU, especially, cartels as "collective monopolies”. In part Α my thesis examines Article 102TFEU (82 of the Treaty) based on the "moreeconomic approach” through the " Guidance on the Commission's enforcement priorities inapplying Article 82 of the EC Treaty to abusive exclusionary conduct by dominantundertakings“ 2009 / C 45/7 par.30 "The Commission considers that a dominant undertakingmay also justify conduct leading to foreclosure of competitors on the ground of efficienciesthat are sufficient to guarantee that no net harm to consumers is likely to arise.In thiscontext, the dominant undertaking will generally be expected to demonstrate, with asufficient degree of probability, and on the basis of verifiable evidence, that the followingcumulative conditions are fulfilled:- the efficiencies have been, or are likely to be, realised asa result of the conduct*…+- the conduct is indispensable to the realisation of thoseefficiencies*…+- the likely efficiencies brought about by the conduct outweigh any likelynegative effects on competition and consumer welfare in the affected markets*…+- theconduct does not eliminate effective competition, by removing all or most existing sourcesof actual or potential competition*…+”.Communication from the Commission, par.30, and the decision of the EU Court (GrandChamber) in Post Danmark C-209/2010 (the Court ,Grand Chamber, hereby rules, andsk.22,40-42) further adopt the economic analysis of law through the positive attitude of theECJ in the above Communication from the Commission. My thesis also focuses on the fact that the undertaking concerned has a specialresponsibility not to allow its conduct to impair genuine undistorted competition on thecommon market. Σhe Commission will normally intervene under Article 82, where theallegedly abusive conduct is likely to lead to anti-competitive foreclosure(case law). The European law began protecting the market structure, as the decisions of the EUCourt ( Microsoft, British Airways, Glaxo SmithKline, Mobile Netherlands) and with theEuropean Commission's decisions accepts and the "criterion of consumer welfare." In part B the thesis analyzes the Trade Mark( l.2239/1994,4072/2012) the Trade marklicense agreement for entrance new undertakings into the market, and the franchising.Furthermore, it examines" the essential facilities" and the relationship between theintellectual property rights and dominant position.

Part VII Steps Following the Adoption of a Commission Decision, 18 Judicial Review of Commission Decisions and Judicial Protection

2020 ◽  
Author(s):  
Kornezov Alexander
Keyword(s):  
European Commission ◽  
Judicial Review ◽  
Institutional Design ◽  
Case Law ◽  
Antitrust Law ◽  
Commission Decision ◽  
Structural Risk ◽  
Judicial Protection ◽  
Significant Concentration ◽  
The Eu

This chapter focuses on the judicial review of different types of Commission decisions. It considers the developments in case law reflecting the need to ensure compliance with the principle of effective judicial protection and give legitimacy to the EU antitrust procedure. The institutional design of EU antitrust law reveals a significant concentration of power in one institution: the European Commission. Such concentration of power in a quasi-criminal area of EU law may create a structural risk of a prosecutorial bias. It is therefore critical to ensure effective judicial protection through in-depth judicial oversight of the Commission’s actions and inactions. The chapter then considers the action for annulment, which is the main procedural vehicle for reviewing the legality of Commission decisions.

scholarly journals Abuse of Dominant Market Position by Predatory Pricing; The Valio Case

2016 ◽  
Vol 1 (1) ◽  
pp. 24
Author(s):  
Aarne Puisto ◽  
Hamed Alavi
Keyword(s):  
United States ◽  
Case Law ◽  
The United States ◽  
The European Union ◽  
Predatory Pricing ◽  
Market Position ◽  
Dominant Position ◽  
The Face ◽  
Dominant Market Position ◽  
The Eu

This article analyses the competition law related to abuse of a dominant market position using strategy of predatory pricing by undertakings in the European Union and, compares the same situation to the United States’ predatory pricing law. The purpose of this article is to survey predatory pricing as a phenomenon both within and outside the EU. Article is largely centered on the case of Valio, which is still awaiting final judgment from the Supreme Administrative Court of Finland. This case was chosen as it is extremely topical and has several unique features. The findings proved that undertakings who achieved their dominant position before the recession have significant advantage over smaller undertakings. However, they cannot necessarily afford to act on the same basis for long, which is why a model closer to that of the United States would be of benefit to control some behaviors of these undertakings. Bearing in mind that the Valio case is examined under EU law, it will be interesting to see if its judgement will be remembered as the ‘milk fallacy’ or if it will change the face of the case law as it currently stands.

Access to the transposition of EU environmental law by Member States: Only if no infringement proceedings initiated

elni Review ◽  
2015 ◽  
pp. 24-29
Author(s):  
Anaïs Berthier
Keyword(s):  
Public Health ◽  
European Commission ◽  
Environmental Law ◽  
Legal Reasoning ◽  
Case Law ◽  
Member States ◽  
General Consensus ◽  
Court Of Justice ◽  
Aarhus Convention ◽  
The Eu

Ensuring a better implementation and enforcement of EU environmental law by Member States is one of the well-established commitments of the European Commission. One reason for this is the general consensus about the fact that the non-implementation of environmental law has huge repercussions, not only on the environment itself but on public health as well as the economy. However, Case C-612/13P shows that the way in which the Commission approaches this commitment is in contradiction with its goal. This article analyses the ruling of the Court of Justice and addresses the legal reasoning behind the refusal from the EU courts to apply the Aarhus Convention to EU institutions. Furthermore, the article elaborates on the concept of investigation under Article 4(2). It also deals with the Regulation 1049/2001 and the limits the Court placed on the presumption of confidentiality established by previous case-law for documents pertaining to administrative files.

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