Abuse of a Dominant Position

2020

 

IPPT20200130, CJEU, Generics v Competition and Markets Authority

Article 101 TFEU. To assess whether a manufacturer of generic medicines that is not present in the market is a potential competitor of a manufacturer of originator medicines when the agreement at issue has the effect of temporarily keeping an undertaking outside a market first it must be determined whether the manufacturer of generic medicines had taken sufficient preparatory steps to enable it to enter the market concerned within such a period of time as would impose competitive pressure on the manufacturer of originator medicines, secondly it must be determined that the market entry of such a manufacturer of generic medicines does not meet barriers to entry that are insurmountable, existence of a patent as such cannot be regarded as an insurmountable barrier, because validity can be challenged. The finding that a manufacturer of generic medicines has a firm intention and an inherent ability to enter the market without there being insurmountable barriers can be confirmed by additional factors: an agreement between undertakings operating at same level in production chain, some of which had no presence in the market concerned, constitutes a strong indication that a competitive relationship existed between them, intention by manufacturer of originator medicines and acted upon to make transfers of value to manufacturer of generic medicines in exchange of postponement of latter’s market entry, even though the former claims the latter is infringing one or more of its process patents, the greater the transfer of value, the stronger the indication. A settlement agreement, with regard to pending court proceedings between a manufacturer of originator medicines and a manufacturer of generic medicines, who are potential competitors, concerning whether the process patent held by that manufacturer of originator medicines is valid and whether a generic version of that medicine infringes that patent has as its object the prevention, restriction or distortion of competition: when it is clear from the analysis of the settlement agreement concerned that the transfers of value provided for by it cannot have any explanation other than the commercial interest of both parties not to engage in competition on the merits, such transfers of value may involve indirect transfers resulting from profits to be obtained from a distribution contract concluded with the manufacturer of originator medicines enabling the generic manufacturer to sell a possibly defined quota of generic medicines manufactured by the manufacturer of originator medicines. A “restriction by object” cannot be rebutted by the fact that the agreement does not exceed the period of validity of the patent the fact that there is uncertainty about the validity of the patent. There is no “restriction by object” when the settlement agreement concerned is accompanied by proven pro‑competitive effects capable of giving rise to a reasonable doubt that it causes a sufficient degree of harm to competition. If a settlement agreement is to be demonstrated to have appreciable potential or real effects on competition and therefore has to be characterized as a “restriction by effect”, that does not presuppose a finding that, in the absence of that agreement, either the manufacturer of generic medicines who is a party to that agreement would probably have been successful in the proceedings relating to the process patent at issue, or the parties to that agreement would probably have concluded a less restrictive settlement agreement. Article 102 TFEU. To define the product market in a situation where a manufacturer of originator medicines covered by a process patent, the validity of which is disputed, impedes, on the basis of that process patent, the market entry of generic versions of that medicine not only the originator version of that medicine need to be taken into account, but also its generic versions, even if the latter would not be able to enter legally the market before the expiry of that process patent, if the manufacturers concerned of generic medicines are in a position to present themselves within a short period on the market concerned with sufficient strength to constitute a serious counterbalance to the manufacturer of originator medicines already on that market, which it is for the referring court to determine. Dominant undertaking that is the holder of a process patent for the production of an active ingredient that is in the public domain, which leads it to conclude, either as a precautionary measure, or following the bringing of court proceedings challenging the validity of that patent, a set of settlement agreements which have, at the least, the effect of keeping temporarily outside the market potential competitors who manufacture generic medicines using that active ingredient, constitutes an abuse of a dominant position within the meaning of Article 102 TFEU, provided that that strategy has the capacity to restrict competition and, in particular, to have exclusionary effects, going beyond the specific anticompetitive effects of each of the settlement agreements that are part of that strategy, which it is for the referring court to determine.

 

2018

 

IPPT20180419, CJEU, Meo v Autoridade da Concorrencia

Interpretation concept of “competetive disadvantage” (subparagraph (c) of the second paragraph of Article 102 TFEU) where a dominant undertaking applies discriminatory prices to trade partners on the downstream market, it covers a situation in which that behaviour is capable of distorting competition between those trade partners. Finding of “competitive disadvantage” does not require proof of actual quantifiable detoriation in the competitive situation but must be based on an analysis of all the relevant circumstances of the case leading to the conclusion that that behaviour has an effect on the costs, profits or any other relevant interest of one or more of those partners, so that that conduct is such as to affect that situation.

 

2014

 

IPPT20140227, CJEU, OSA

Indication of abuse of dominant position if collecting society imposes fees which are appreciably higher than those charged in other Member States, or imposes prices which are excessive in relation to the economic value of the service provided

 

2012

 

IPPT20120712, CJEU, Compass-Datenbank v Republik Osterreich
No economic activity public authority by acting on statutory obligations; no undertaking (abuse of dominant position)

 

2010

 

IPPT20100701, GCEU, AstraZeneca

the Commission applied Article 82 EC correctly in taking the view that the submission to the patent offices of objectively misleading representations by an undertaking in a dominant position which are of such a nature as to lead those offices to grant it SPCs to which it is not entitled or to which it is entitled for a shorter period, thus resulting in a restriction or elimination of competition, constituted an abuse of that position. The question whether those representations were objectively misleading must be assessed in the light of the specific circumstances and context of each individual case.

 

2009

 

IPPT20090716, ECJ, Der Grüne Punkt

Abuse dominant position by requiring payment of a fee for all packaging put into circulation in Germany, even if there is no use of the DGP system

 

IPPT20090423, ECJ, AEPI v Commission

The concept of serious impediments to the proper functioning of the common market may constitute one of the criteria for evaluating whether there is sufficient Community interest to necessitate the investigation of a complaint. The effect on trade between Member States thus serves as a criterion to define the scope of Community competition law.

 

IPPT20090326, ECJ, Selex v Commission - Eurocontrol

The acquisition of prototypes and the related management of intellectual property rights does not make that activity an economic one, since the acquisition did not involve the offer of goods or services on a given market. Eurocontrol granted licences at no cost, which indicated that the management of intellectual property rights was not an economic activity.

 

2008

 

IPPT20081211, ECJ, Kanal 5 and TV 4 v STIM

Abuse of a dominant position by copyright management organisation: A remuneration model according to which the amount of the royalties corresponds to the use is not abuse of a dominant position. Using a different remuneration model for commercial companies and public service undertakings is abuse of a dominant position. 

 

IPPT20080916, ECJ, GSK

An undertaking which, in order to put a stop to parallel exports carried out by certain wholesalers, refuses to meet ordinary orders from those whole-salers, is abusing its dominant position.

 

2004

 

IPPT20040429, ECJ, IMS Health

Three conditions for abuse by refusal to grant a licence (a) to offer new products or services not offered by the owner (b) not justified by objective considerations and (c) to reserve the market by eliminating all competition.

 

1998

 

IPPT19981126, ECJ, Bronner

The refusal, by a press undertaking which holds a very large share of the market in a Member State and operates the only nationwide newspaper home-delivery scheme, to allow the publisher of a rival newspaper, to have access to that scheme for appropriate remuneration does not constitute abuse of a dominant position.

 

1995

 

IPPT19950406, ECJ, Magill

Abuse of a dominant position: RTE and ITP, as the agent of ITV, enjoy, along with the BBC, a de facto monopoly over the information used to compile listings for television programmes. There is no actual or potential substitute, appellants prevent the appearance of a new product without a jusitification for the refusal and appel-lants reserved to themselves tehe secondary market of weekly television guides by excluding all competition on that market.  

 

1988

 

IPPT19881005, ECJ, Maxicar v Renault
Exercise design law not precluded by free move-ment of goods. Abuse of a dominant position: the mere fact of obtaining protective rights in re-spect of ornamental designs for car bodywork com-ponents does not constitute an abuse of a dominant position within the meaning of Article 86 of the Treaty.

 

IPPT19881005, ECJ, Volvo v Veng
Refusal to license not in itself abuse of a dominant position. an obligation imposed upon the proprietor of a protected design to grant to third parties, even in return for a reasonable royalty, a licence for the supply of products incorporating the design would lead to the proprietor thereof being deprived of the substance of his exclusive right

 

1980

 

IPPT19800911, ECJ, L'Oreal v AMCK

A selective distribution system based on criteria for admission, which go beyond a mere objective selection of a qualitative nature, is probably incompatible with article 85 (1). A decision to grant exemption gives rise to rights in the sense that parties to an agreement which has been the subject of such a decision may rely on that decision against third parties who claim that the agreement is void on the basis of article 85 (2).