On June 26, 2020, the Commission opened a public consultation on the 1997 Market Definition Notice (the “Notice”), which sets out the Commission’s formal guidance on the definition of the relevant product and geographic market in competition cases.[1] Until October 9, 2020, anyone interested may visit the Commission’s website (here) and submit comments and respond to the Commission’s questionnaire about the relevance, effectiveness, efficiency, coherence, and value of the Notice as a guidance instrument.
Advocate General Kokott Opines on Pharma Reverse-payment Settlement (Lundbeck)
On June 4, 2020, AG Kokott advised the Court of Justice to confirm the General Court’s judgment upholding the Commission’s decision of June 19, 2013 (“the Opinion”). The aforementioned decision imposed fines of €146 million on Lundbeck and five other generic drug manufacturers (“generics”) for patent settlement agreements that prevented the sale of rival versions of Lundbeck’s antidepressant drug citalopram.[1]
The Commission Launches its Public Consultation on the Review of the Vertical Block Exemption Regulation and Publishes a Roadmap for its Future Review of the Motor Vehicle Block Exemption Regulation
On June 2, 2020, the Commission published two inception impact assessments[1] and two public consultations which address two new policy initiatives: (1) a new market investigation tool (“new competition tool”);[2] and (2) a regulatory instrument that would ex ante govern large online platforms that act as gatekeepers with significant network effects in the European Union’s internal market.[3] These initiatives are part of the Commission’s wider efforts to modernize EU competition law in an era of digitalization. Stakeholders are invited to submit their comments up until September 8, 2020[4] and the impact assessments are expected to be submitted to the Regulatory Scrutiny Board of the Commission and be finalized in the fourth quarter of 2020.
Implications of the Three/O2 Judgment for EU Merger Control
On May 28, 2020 the General Court overturned Commissioner Vestager’s first prohibition decision, blocking a 4-to-3 merger in the UK
The Commission Waives Merger Commitments in Takeda/Shire and Nidec/Whirlpool
The Commission’s Notice on remedies states that waivers “will very rarely be relevant for divestiture commitments” and since divestiture commitments are required to be implemented in a short time after the decision, it is “very unlikely” that sufficient changes in market circumstances will have occurred for the Commission to accept any modifications of the commitments.[1] In May 2020, the Commission waived commitments given to secure merger control approval in two cases.
Lexon (UK) Limited v CMA
On 28 May 2020, the CAT published the summary of an appeal by Lexon (UK) Limited against the CMA’s decision
The Commission Publishes Support Studies for the Evaluation of the Vertical Block Exemption Regulation
Following the Commission’s roadmap and launch of the public consultation process,[1] on May 26, 2020, the Commission published the final report[2] with support studies for the evaluation of the Vertical Block Exemption Regulation (the “VBER”).[3] The report is part of the Commission’s evaluation of the VBER, which is set to expire on May 31, 2022.
Amit Patel v CMA
On 28 May 2020, the CAT published the summary of an appeal by Amit Patel, a former director of Auden Mckenzie (Pharma Divisions) Limited and Auden Mckenzie Holdings Limited (together, Auden Mckenzie), against the CMA’s decision of 4 March 2020.
COVID-19 Update: Time-limits for Merger Control and Antitrust Proceedings Are Gradually Resuming
By Order No. 2020-560 of May 13, 2020, the Government decided not to further postpone the time limits that had been suspended or interrupted since March 12, 2020, despite the extension of the state of health emergency. Consistently, in a press release of May 18, 2020, the French Competition Authority (“FCA”) announced that it would progressively re-instate the statutory time limits that had been interrupted or suspended in light of the state of health emergency. All of these time limits will resume on June 24, 2020 at the latest.[1]
Flynn Pharma Ltd and Flynn Pharma Holdings Ltd V Cma
On 12 May 2020, the Court of Appeal handed down its judgment in an appeal against the CAT’s cost ruling in the successful appeals by Pfizer and Flynn against the CMA’s abuse of dominance decision relating to the anti-epilepsy drug, phenytoin sodium. In its costs ruling, the CAT considered that the relevant starting point was that the unsuccessful party should pay the successful party’s costs.