European Pharmaceutical Antitrust after Groupment des Cartes Bancaires – Time to Rethink the Approach to Pay For Delay Settlements?

October 20, 2014

(by Sven Gallasch) Over the last year the European Commission has stepped up its enforcement efforts against pay for delay settlements[1]. In June 2013 they imposed a fine for the first time totalling €152 million, on a brand company (Lundbeck) and a number of generic companies for delaying the market entry of a cheaper generic version of Citalopram, an antidepressant drug. In subsequent decisions, the Commission imposed a fine of €16 million on Johnson & Johnson and Novartis for the delay of a generic pain-killer based on Fentanyl, and a fine in excess of €427 million on Servier and five generic companies in relation to the delay of generic version of the blood pressure drug Perindopril in July 2014 (see earlier blog post).

Although the full decisions are not yet in the public domain, it has become evident from the appeals against the Lundbeck decision that the Commission regards these pay for delay settlements as restrictions by object; they are assumed to be illegal without any effects analysis.[2] This blog post suggests that such an approach could prove costly for the Commission in the long run. Read the rest of this entry »


The EU Commission Decision against Servier – a New Dimension to European Pharmaceutical Antitrust?

July 11, 2014

(by Sven Gallasch) On 9 July 2014 the European Commission announced its decision to impose a fine of €427.7 million on French drug maker Servier and five generic companies in relation to so-called ‘pay for delay’ settlements concerning Servier’s bestselling blood pressure drug perindopril. The case differs from the Commission’s earlier decisions against Lundbeck and Johnson & Johnson in a number of rather notable aspects, which will be addressed in this blog post. Read the rest of this entry »


Competition Policy and Scottish Independence

July 1, 2014

(by Andreas Stephan) On 18 September 2014 Scottish residents will be asked whether Scotland should be an independent country. A discussion was held at the recent Antitrust Enforcement Symposium (held by the University of Oxford’s Centre for Competition Law and Policy) regarding competition policy in an independent Scotland. This blog piece focuses on the impact independence would have on competition enforcement in Britain. 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 agreements

June 4, 2013

[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.[1] In essence, the Court has declared that any object agreement[2] 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 »


Competition Law as a complement to Intellectual Property Law?

May 8, 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.[1]  What were the most contentious issues?

Read the rest of this entry »


Cardiff Bus: Exemplary Damages in Follow-on Cases

July 23, 2012

(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[1] where Lewison J held (at [48]) 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[2] chose to award £60,000 in exemplary damages.  Read the rest of this entry »


The General Court’s judgment in Telefónica: has the Atlantic Ocean just got wider?

April 17, 2012

(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 »


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