On March 25, 2021,[1] the Court of Justice ruled that to demonstrate abuse, where a dominant undertaking has already offered access to its infrastructure but on unfair terms, it is not necessary to show that access to the infrastructure is indispensable within the meaning of the Court of Justice’s Bronner essential facilities doctrine.
The Court of Justice’s Lundbeck Ruling Finds Nothing New Under the Sun for By-object Restrictions
On March 25, 2021, the Court of Justice dismissed the appeals of H. Lundbeck A/S and Lundbeck Limited (“Lundbeck”), as well as of certain generic drugmakers (“generics”),[1] against the General Court judgments upholding the first-ever so-called pay-for-delay Commission decision.
Pometon v. Commission: The Court of Justice Sheds Light on the Principle of Equal Treatment and the Presumption of Innocence in Hybrid Cartels Settlements
On March 18, 2021, the Court of Justice ruled on Pometon SpA (“Pometon”)’s appeal against the General Court’s judgment in the steel abrasives[1] hybrid cartel settlement case. The Court of Justice ruled that the General Court had breached the principle of equal treatment when recalculating the fine imposed on Pometon by the Commission in 2016, the only non-settling party in this case. The Court of Justice therefore further reduced Pometon’s fine to €2.6 million, imposing an approximate 60% discount on the original fine calculated by the Commission.[2]
Commission Says PPC Might Have Engaged in Predatory Bidding and Hindered Greece’s Efforts To Go Green
On March 16, 2021, the Commission announced the opening of a formal investigation into Public Power Corporation (“PPC”), the largest wholesale and retail electricity supplier in Greece, and majority-owned by the Greek State, for allegedly abusing its dominance in the Greek wholesale electricity sector through predatory pricing strategies arising from its bidding behavior.[1]
The Council of State Turns to the ECJ Again in the Roche-Novartis Case
On March 15, 2021, the Council of State delivered a non-final judgment (the “New Judgment”) dismissing in part, on procedural grounds, the applications brought by F. Hoffmann-La Roche Ltd. and Roche S.p.A. (“Roche”), as well as Novartis Farma S.p.A. and Novartis AG (“Novartis”; jointly, the “Parties”), for the revocation of a 2019 judgment of the same court (the “2019 Judgment”).[1] By the 2019 Judgment, the Council of State upheld the ruling of the Lazio Regional Administrative Court (the “TAR Lazio”) as well as the 2014 ICA decision fining the Parties for their participation in an alleged cartel (as described below; the “ICA Decision”).[2]
Pharma Still Under the Microscope: The Commission Investigates Potentially Abusive Patent Filing Strategies
On March 4, 2021, the Commission launched a formal in-depth investigation into Teva’s patent filings conduct related to its blockbuster multiple sclerosis medicine, Copaxone.[1] This is reportedly the first time that the Commission investigates potential abuses relating to divisional patents filing strategies.[2] This announcement, together with the recent formation, on March 16, 2021, of a multilateral working group on pharmaceutical mergers with leading competition authorities, confirms the Commission’s continued interest in the pharmaceutical sector.[3]
The Court of Justice Confirms Parallel Antitrust Investigations at European and National Level Are Possible if Different in Scope
On February 25, 2021, the Court of Justice held that the Commission and the Slovak competition authority did not infringe EU law when conducting two parallel investigations against Slovak Telekom.[1] Because the two investigations pertained to different product markets, regulators at the European and national level were entitled to proceed in parallel and eventually impose two distinct fines on Slovak Telekom.
The French Cour de Cassation Confirms the Validity of FCA Dawn Raids Authorized on the Basis of Another Competition Authority’s Request for Investigative Measures
In a ruling dated February 17, 2021, the Cour de cassation dismissed an appeal formed against an order dated June 2019, in which the Paris Court of Appeals confirmed that the FCA could validly initiate an investigation and carry out dawn raids on the basis of a request for inspection issued by the competition authority of another EU Member State.
The Commission Accepts Commitments Offered by Aspen in Its First Decision on Excessive Pricing in the Pharmaceutical Sector
On February 10, 2021, the Commission accepted commitments offered by South African pharmaceutical company Aspen and ended one of its rare investigations into excessive pricing (and reportedly the first in the pharmaceutical sector).[1] The decision provides guidance on how the Commission evaluates excessive pricing of off-patent medicines and how to remedy potential concerns.
Volvo Secures Unconditional Clearance of Fuel-cell Joint Venture With Daimler
On February 5, 2021, the Commission unconditionally cleared the creation of a joint venture (“JV”) between the Volvo Group (“Volvo”) and Daimler Truck AG (“Daimler”).[1] The JV will be active in the relatively novel, but rapidly evolving, hydrogen fuel-cell technology sector, which promises a “green” future in particular for transport.[2]