On July 11, 2019, the Paris Court of Appeals dismissed most of the pharmaceutical company Janssen-Cilag’s claims in its appeal against the FCA decision fining it for delaying market entry of a generic drug[1], thereby essentially upholding the FCA’s third decision fining a pharmaceutical company for denigrating generic drugs after Sanofi-Aventis[2] and Schering-Plough.[3]
GSK’s Acquisition of Pfizer’s Consumer Health Business Cleared Subject to Remedies
On July 10, 2019, the Commission conditionally cleared GlaxoSmithKline’s (“GSK”) acquisition of Pfizer’s Consumer Health Business following a Phase I review.[1] The transaction forms part of GSK’s and Pfizer’s plan to contribute their respective consumer healthcare businesses to a new venture, over which GSK will have sole control.
The FCA Publishes Its 2018 Annual Report
The FCA published its 2018 annual report, which, this year, also provides an overview of the FCA’s policy and results over the last decade (see our article published in the April newsletter[1]).
European Champions Debate Continues
On July 4, 2019, France and Germany, joined by Poland, issued a joint call to modernize European competition rules (“Joint Statement”).[1] This follows the publication in February 2019 of a Franco-German Manifesto for a European industrial policy to foster the creation of European champions.[2] The Joint Statement scales back some of the Manifesto’s far-reaching ideas.
New Guidelines on “Passing-on” of Overcharge and Disclosure of Confidential Information in Cartels Damages Claims
On July 1, 2019, following a one-year public consultation with national courts and other stakeholders, the Commission published new guidelines to assist national judges in estimating the “passing-on” of overcharge in cartel damages claims.[1] The guidelines are the latest step in efforts to develop a forum for antitrust damages litigation throughout Europe, given that these actions are, at present, typically confined to a small number of national jurisdictions (the U.K., the Netherlands, and Germany).
The Commission Fines Canon €28 Million For Gun-Jumping
On June 27, 2019, the Commission imposed two fines totaling €28 million on Canon in the context of its acquisition of Toshiba Medical Systems Corporation (“TMSC”). The first fine of €14 million was levied for Canon’s failure to notify the Commission prior to the implementation of the transaction in violation of Article 4(1) of the EU Merger Regulation (“EUMR”). The second fine of €14 million, was imposed as a result of Canon implementing the transaction prior to obtaining clearance, breaching Article 7(1) EUMR.
FCO Presents Annual Report 2018 With a Focus on the Digital Economy and Consumer Protection
On June 27, 2019, the German Federal Cartel Office (“FCO”) published its Annual Report 2018 as well as its biennial Activity Report 2017/2018.[1] Andreas Mundt, the President of the FCO, pointed out that the FCO has a clear digital agenda with a focus on the digital economy and the protection of consumer rights, which it will continue to pursue this year.
R (on the Application of Advanz Pharma Corp) v CMA
The case concerns an abuse of dominance investigation by the CMA into the supply of Liothyronine tablets in the UK
CMA Publishes Merger Remedy Evaluation
In June 2019, the CMA published its Merger Remedy Evaluations Report (the Report) – the latest in a series of case evaluations conducted to develop the CMA’s expertise, policy, and practice on merger remedies. The Report notes that its findings will be “used to inform the way in which the CMA approaches remedy design and implementation in subsequent cases.” The Report contains useful guidance for parties on the types of remedies that the CMA is prepared to accept or may require.
The Inspection Générale Des Finances and the Conseil Général de L’éConomie Publishes a Report on EU Competition Policy and Industrial Strategy
On June 2, 2019, the Inspection générale des finances and the Conseil général de l’économie published a report on the EU competition policy and industrial strategy (the “Report”). The Report was commissioned by the Ministry of Economy and Finance in December 2018 and aimed at assessing EU competition policy in the context of the 2019 European elections. The Report highlights the necessity to reshape the procedures and legal instruments used by the European Commission, in particular in merger control, to answer a number of criticisms raised by the French and German governments following the decision of the European Commission to prohibit the Alstom- Siemens merger on February 6, 2019.[1] The Report states that competition policy seems to be applied more strictly in Europe than elsewhere, including China, and that the European Union’s strategic and industrial interests should be given more consideration in competition decisions.