On March 13, 2020, the Council of State rejected the appeal lodged by Aspen Pharma Trading Ltd., Aspen Italia s.r.l., Aspen Pharma Ireland Ltd., and Aspen Pharmacare Holdings Ltd. (together “Aspen”) against the judgment issued by the TAR Lazio on July 26, 2017,[1] which upheld the 2016 ICA decision to fine Aspen in an amount in excess of € 5 million for charging excessive prices in violation of Article 102(a) TFEU.[2]
Flynn Pharma Limited and Others v Competition Markets Authority
On 10 March 2020, the Court of Appeal handed down its judgment in an appeal brought by the CMA against
DG COMP Responds to the COVID-19 Outbreak (March 2020)
The COVID-19 pandemic has caused significant economic disruption, including supply shortages, cost increases, and liquidity constraints resulting from a prolonged shutdown. As EU Member States and businesses respond to these challenges, and even as lockdown measures are gradually eased, their actions continue to raise potential issues under competition law.
Generics UK: The Court of Justice Issues Judgment on the Application of EU Competition Law to Pharmaceutical Reverse-payment Settlements
On Janaury 30, 2020, the European Court of Justice (the “ECJ”) issued a potentially far-reaching preliminary ruling in response to a May 2018 preliminary reference made by the U.K. Competition Appeals Tribunal (the “CAT”).[1]
The Cour de Cassation Issues Two Judgments Relating to the Business Secret Protection in the FCA’s Proceedings
On January 29, 2020, the Cour de Cassation issued two judgments relating to decisions from the FCA’s Rapporteur Général to waive the protection of business secrets granted to a party in proceedings before the FCA. In the first judgment, the Cour de Cassation held that the Rapporteur Général must provide concrete reasons in order to waive the protection of business secrets granted to a party in proceedings involving other parties. Conversely, in the second judgment, the proceedings did not involve any other parties, and the Cour de Cassation upheld the Rapporteur Général’s decision to waive the protection of business secrets initially granted to a party. The Cour de Cassation considered that the Rapporteur Général’s decision would not risk exposing that party’s business secrets to any third parties.
The FCA Publishes an Antitrust Practical Guide for SMEs
In February 2020, the FCA published a practical guide on the application of antitrust rules to small and medium-sized enterprises. The FCA published this guide with the knowledge that SMEs often lack the resources to be fully aware of and comply with antitrust rules.
German Government Proposes Significant Reform of Competition Law
On January 24, 2020, the German Ministry for Economic Affairs published a draft proposal for the 10th Amendment to the German Act against Restraints of Competition (“Draft Proposal”). Its main objectives are (i) to enable and strengthen the protection of competition in digital markets, (ii) to make German competition law and its enforcement more efficient in general, and (iii) to implement the ECN+ Directive[1].
The FCA Issues a Study on Behavioral Remedies
In January 2020, the FCA published its study on behavioral remedies in merger control and anticompetitive practices.[1] The study takes stock of the FCA’s decisional practice on behavioral remedies and provides material for broader discussion amongst competition law practitioners and academics.
The French Competition Authorities Announces Its Enforcement Priorities for 2020 and Creates a Dedicated Digital Department
On January 9, 2020, the French Competition Authority (“FCA”) announced its main priorities for 2020.1[1] The regulator stressed that the digital and retail sectors would remain at the top of its agenda given the recent developments in these fields and the challenging competition issues they raise. Trade associations and unions may also face more significant fines while climate concerns may raise discussions between regulators to enhance environmental protection. On the legislative front, the FCA will follow the implementation of the ECN+ Directive in France and the upcoming revision of French merger control guidelines.
The Council of State Annuls the Judgments of the Tar Lazio That Quashed an Ica Decision Fining Bid-rigging Practices in the Home Oxygen Therapy and Home Mechanical Ventilation Sectors
Background
The decision of the ICA
On December 21, 2016, the ICA concluded its investigation into certain anticompetitive practices allegedly implemented by major firms active in the provision of home oxygen therapy (“HO”) and home mechanical ventilation (“HMV”) services. According to the ICA, Linde Medicale S.r.l. (“Linde”), Medicair Italia S.r.l. (“Medicair”), Medigas Italia S.r.l. (“Medigas”), Sapio Life S.r.l. (“Sapio”), Vitalaire Italia S.p.A. (“Vitalaire”), Vivisol S.r.l. (“Vivisol”), Eubios S.r.l. (“Eubios”), Oxy Live S.r.l. (“Oxy”), Ossigas S.r.l. (“Ossigas”), Magaldi Life S.r.l. (“Magaldi”) and Ter.gas. S.r.l. (“Ter.gas.”) participated in three separate agreements affecting the outcome of open tender procedures for the provision of HMV in part of the Milan province, HMV and HO in the Marche region and HO in the Campania region, launched by ASL Milano 1, ASUR Marche and SORESA between 2012 and 2014.[1]