Hoffmann-La Roche – Some Broader Implications

On 29 January, Covington hosted its webinar on the ECJ’s Hoffmann-La Roche vs Autorità Garante della Concurrenza e del Mercato judgment.  Miranda Cole discussed the potential implications of this judgment for market definition, field of use licences and indication-based pricing.  The full presentation can be found here.

The Italian Council of State referred five questions to the ECJ in March 2016 in the context of the appeal against the Italian Competition Authority’s decision that Roche and Novartis reached an illegal market-sharing agreement in the market for ophthalmic drugs for serious vascular eyesight conditions.  In September 2017, Advocate General Saugmandsgaard Øe took the position that licensed and unlicensed pharmaceutical products used for the same indication may fall within the same relevant product market.

EDEKA “wedding rebates” – German Federal Supreme Court removes roadblock to antitrust enforcement in food retail sector

On 23 January 2018, Germany’s Federal Supreme Court (Bundesgerichtshof – BGH) handed down its judgment on alleged anti-competitive requests for preferential rebates and conditions by food retailers (case KVR 3/17 – not yet published).  This is an important judgment as it removes a major roadblock to antitrust enforcement in the food retail sector in Germany, and maps a route for antitrust enforcement in a sector in which regulators have historically struggled to make much headway.

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The EU Commission Communication on SEPs: a workable resolution to patent wars in the EU, or more competition litigation battles ahead?

The European Commission published its highly anticipated Communication Setting out the EU approach to Standard Essential Patents at the end of 2017, as part of a package to protect Europe’s know-how and innovation leadership (see Commission Press Release Intellectual property: Protecting Europe’s know-how and innovation leadership).

The first section proposes concrete measures to improve the transparency of standard essential patents (SEPs) exposure.  Whether or not the proposed measures are useful, it is not clear what impact they will have on the market as there is no legislative force behind them.

The second section, eagerly awaited by competition SEP specialists, deals with the interaction of SEP holders and licensees, and in particular the persistently hot topic of FRAND licensing and SEP enforcement. This section may be disappointing for those who were hoping for guidance on some of the more difficult aspects of SEP licensing terms.  While widely debated and lobbied between patent holders and users in the run up to its release, the Communication is silent on two key issues – “use-based licensing” and “licensing to all”.

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Competition Law Enforcement Trends in the U.S., Europe and China: Looking Ahead to 2018

2017 was another year of active enforcement globally—including in the U.S., despite the start of a new Presidential Administration touting an aggressive deregulatory agenda. Transactions in consolidated industries drew enforcement fire in both Europe and the United States (Dow/DuPont, ChemChina/Syngenta, Bayer/Monsanto, AT&T/Time Warmer). And, in March, the UK government formally started the “Brexit process,” which raises important questions about the enforcement of EU competition rules in the UK.

This Alert looks back at the major competition/antitrust developments in 2017 in the United States, Europe and China and the Covington view of what to expect in 2018.

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The UK’s CMA Consults on its Proposed Annual Plan 2018/19

The UK’s Competition and Markets Authority (the “CMA”) published its proposed “Annual Plan 2018 to 2019” for public consultation last month. Respondents have until January 14 2018, to respond as to whether they agree with the overall direction of the proposed Annual Plan, whether they believe there is anything more that the CMA should be doing or whether there is anything that the CMA should de-prioritise in 2018/19.

We note below some interesting take-away points from the proposed Annual Plan.

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Luxury Goods Manufacturers May Block Certain Online Sales on Third-Party Platforms

By Jennifer Boudet, Miranda Cole and Gemma Nash.

On 6 December 2017, the Court of Justice of European Union (CJEU) issued its long-awaited Judgment in Coty Germany GmbH v Parfümerie Akzente GmbH.  Taking an approach similar to that adopted by Advocate General (AG) Wahl in his Opinion in July, the CJEU found that a supplier of luxury goods may prevent its authorised retailers from using third-party platforms in a “discernible” manner to sell its products, in order to preserve the products’ luxury image.

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E-Commerce in the EU, Covington & Laurence Simons General Counsel Seminar

On 30 November, Covington and Laurence Simons co-hosted a seminar on e-commerce in the EU for a variety of General Counsel from different industries.  E-commerce continues to grow rapidly in Europe and is expected to be worth more than €600 billion in 2017.  In this context, companies already active in the EU, or wishing to enter the European market, must familiarise themselves with the potential legal challenges ahead of them.

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Key Conclusions – Cartels: Lessons from Recent Investigations, Brussels Advanced Competition Law Conference

On 22 November, Johan Ysewyn and Maria Jaspers (DG COMP) presented the highlights of recent EU cartel enforcement in their annual dual-presentation at the Advanced EU Competition Law Conference in Brussels.  They covered their traditional three pillars of enforcement, policy and court review.

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Covington’s Net Neutrality and Zero-Rating Webinar

On 20 November, Covington hosted its webinar looking at developments in Net Neutrality and Zero-rating from both a US and a European perspective. Our presenters included ex-FCC Bureau Chief, Partner Matt DelNero from our DC office, and ex-DG Competition Head of Unit, Partner Kevin Coates and Senior Associate Siobhan Kahmann from our Brussels office. The webinar was well attended, with participants from all major jurisdictions around the world.

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The Vestager Tenure : Mid-Point or Turning Point?

We are now well past the mid-point of Commissioner Vestager’s tenure as European Commissioner for Competition.  Let us assume that – as with all of her predecessors, and regardless of merit – she will not be reappointed for a second term in the post, so that by the end of 2019 we will have a new Competition Commissioner.

What this means, among other things, is that if an antitrust or State aid case has not yet started, then it is in practice impossible to finish it within her term.  That means that the Commissioner’s margin of manœuvre in establishing a legacy is mostly limited to the cases that we already know about.

So what do we know about Commissioner Vestager – and can we start predicting what the next two years of competition enforcement will look like?

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