The UK Competition and Markets Authority (CMA) last week fined pharmaceutical companies Pfizer and Flynn £63 million and £6.7 million for engaging in excessive pricing. In the CMA’s view, the companies charged unfairly high prices for Phenytoin capsules, a genericised anti-epilepsy drug, in violation of competition law.
Cleary Gottlieb partners Matteo Beretta, Frédéric de Bure, Maurits Dolmans, Paul Gilbert, Francisco Enrique González-Díaz, Thomas Graf, Henry Mostyn, Romina
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On July 15, 2022, China’s antitrust authority SAMR announced a three-year pilot program beginning August 1, 2022 to delegate the review of certain simplified-procedure merger filings that the agency currently handles on its own, to five of its local branches (“AMRs”) in Beijing, Shanghai, Guangdong, Chongqing, and Shaanxi. Each of the five local AMRs will be responsible for a specific geographic area (“Territory”) within China. This is the first step to implement China’s “categorized and classified” merger control review regime under the new Anti-Monopoly Law.[1]
In a significant judgment rendered on July 13, 2022 (“Judgment”), the EU’s General Court validated the position taken by the European Commission (“EC”) in a March 2021 Guidance Paper encouraging national competition authorities (“NCAs”) to use Article 22 of the EU Merger Regulation (“EUMR”) to refer transactions to the EC that do not meet national merger control thresholds, but which they believe may threaten to significantly affect competition within the EU.
On July 18, the European Council approved the final text of the DMA, marking the final step before the DMA enters into force. This followed the European Parliament approving, on July 5, the final text of the Digital Markets Act (DMA), by 588 votes to 11. The DMA is likely to enter the EU’s Official Journal in October, which means the behavioural rules will kick in early-to-mid 2024.
On July 14, 2022, Advocate General Rantos delivered his opinion in Unilever on two important questions referred to the Court of Justice:[1] (i) whether companies linked by contractual ties could constitute a “single economic unit”; and (ii) whether the Court of Justice’s ruling in Intel, that antitrust agencies must examine evidence put forward by the defendant that conduct is not capable of foreclosing equally efficient competitors, applies to practices beyond the exclusivity rebates considered in Intel.[2]
On July 14, 2022, the Commission invited comments on Amazon’s proposed commitments, offered under Article 9 of Regulation 1/2003, in two investigations concerning practices that allegedly advantaged its own services on its online marketplace, contrary to Article 102 TFEU. The invitation for comments is open until September 9, 2022.
On 30 June 2022, the EU institutions reached political agreement on a new regulation which will allow the European Commission to control non-EU government subsidies given to businesses active in the EU (the “Regulation”).
On July 12, 2022, the Commission fined metal packaging producers Crown and Silgan €31.5m for breaching Article 101 TFEU by exchanging sensitive information and coordinating their commercial strategies for the sale of metal cans and closures in Germany over a three-year period.[1] The products concerned were metal lids for glass jars, coated with lacquers containing bisphenol A (“BPA”) or BPA-free lacquers and metal cans coated with BPA-free lacquers. These products were predominantly used to package foods, such as vegetables, fruit, meat, and fish.