[by Pinar Akman] One of the most important holdings of the Court of Justice in recent times is buried in paragraph 37 of the 8-page long Expedia judgment, which surprisingly has had few competition lawyers shouting from the rooftops. In essence, the Court has declared that any object agreement which has an effect on trade between Member States has an appreciable effect on competition. In other words, object agreements (with an effect on trade between Member States) can no longer make use of the de minimis doctrine. This represents an important change in the jurisprudence of the Court and, unfortunately, not an ideal one. Read the rest of this entry »
The Court of Justice’s Expedia ruling undermines the economic approach by eliminating the ‘de mimimis’ defence in object agreementsJune 4, 2013
(by Amelia Fletcher) The European Commission is currently consulting on proposed revisions to the Technology Transfer Block Exemption Regulation (TTBER) and associated Guidelines. These documents provide legal rules and guidelines in relation to technology transfer agreements, otherwise known as IP licensing agreements. On 7th May, the Office of Fair Trading and the Intellectual Property Office held their first joint event: a debate on these proposed revisions. What were the most contentious issues?
(by Morten Hviid) Should there ever be the possibility of awarding exemplary damages in a private follow-on action for breach of competition law? To my mind, the answer to this general question should be “NO”. To be a follow-on claim, there must already have been an infringement decision by a relevant competition authority. Where it finds an infringement, the competition authority is tasked with designing an appropriate punishment aimed at deterring and punishing the anticompetitive conduct. When the follow-on case is commenced, the matter of punishment has already been dealt with and non bis in idem [not twice for the same] should rule out subsequent exemplary damages. It should not be for a court or a Tribunal to run the case again as regards punishment unless this is as a result of an appeal of the original infringement decision. With no differences in the standard of proof, arguments that “the defendant should have been fined” belongs to an appeal of the OFT decision, not in a new action for damages.
On the whole this logic has been followed in the UK, for example in Devenish where Lewison J held (at ) that “the imposition of fines and an award of exemplary damages serve the same aim: namely to punish and deter anti-competitive behaviour”. However, based on a logic that, while a zero fine as a result of a leniency programme is still a punishment, immunity from a fine arising from an OFT policy decision is not, the Competition Appeals Tribunal [CAT] in their recent Cardiff Bus decision chose to award £60,000 in exemplary damages. Read the rest of this entry »
(by Pinar Akman) On 29 March 2012 the General Court (GC) handed down its judgment in the case of Telefónica (Case T-398/07 Kingdom of Spain v European Commission). The issue at stake was the Commission’s decision in Wanadoo España / Telefónica. The original decision found that Telefónica’s pricing had been exclusionary and thus abusive despite it being approved by the regulator. The GC upheld the Commission decision in its entirety and dismissed the appeal. This is in stark contrast to two famous US Supreme Court decisions which recently reached very different conclusions in similar circumstances. Read the rest of this entry »
Does the closure of the EU “pay-for-delay” investigations against AstraZeneca and GSK mark the end of pharmaceutical antitrust in Europe?April 11, 2012
(by Sven Gallasch) Last month the European Commission closed its antitrust investigations into AstraZeneca/Nycomed and GlaxoSmithKline/Synthon BV. These centred on possible anticompetitive agreements to delay generic entry into the market. The investigations had been launched following the European Commission’s Pharmaceutical sector inquiry in 2009. The decision to end the investigations may come as a surprise given comments made at the time by Commissioner Kroes: “The inquiry has told us what is wrong with the sector, and now it is time to act. […] We will not hesitate to apply the antitrust rules where such delays result from anticompetitive practices”. So why did the investigation run out of steam? Read the rest of this entry »