On 22 March 2022, the European Court of Justice (“ECJ”) issued two separate preliminary rulings – Bpost and Nordzucker – which clarify how the protection against double jeopardy (“non bis in idem principle”) should be applied in instances where an identical competition law infringement is sanctioned in parallel investigations, either by different regulatory authorities of the same EU Member State or by multiple national competition authorities (“NCAs”) from different EU Member States.

The key takeaways from the two judgments are as follows:

  • the non bis in idem principle applies to competition law due to the criminal aspect embedded in the relevant administrative penalties;
  • the non bis in idem principle only applies if the facts are identical – a mere reference to a fact in a decision is not sufficient to demonstrate that an authority has ruled on that element;
  • different national authorities can impose fines for an identical infringement if the legislation on which they rely pursues complementary objectives;
  • the non bis in idem principle also applies to situations where an NCA has granted leniency to a company such that only a declaratory finding infringement (without fine) can be made.


Continue Reading European Court of Justice clarifies scope of protection against double jeopardy in successive antitrust investigations

In Enel, a judgment of 12 May 2022 (C-377/20), the Court of Justice of the European Union (“CJEU”) complemented the framework for analysing exclusionary abuses developed in earlier case-law, notably where it applies to a context of market liberalisation:

  • Abuse: The concept of “abuse” relates to conduct that departs from “competition on the merits”. Conduct that an equally efficient competitor can replicate is generally not abusive (“equally efficient competitor test”).
  • Anti-competitive effects: While it is not necessary to demonstrate actual anti-competitive effects or the company’s intention to carry out an exclusionary strategy, such factors are relevant in assessing whether the conduct is abusive or not.
  • Harm: Conduct that harms consumers indirectly as a result of its effect on the structure of the market is per se abusive; it is not required to demonstrate an actual or potential direct harm to consumers.
  • Objective justification: The prohibition set out in Article 102 TFEU does not prohibit   conduct that is objectively justified and proportionate, or where the behaviour is counterbalanced or outweighed by pro-consumer efficiency-benefits.

The judgment largely endorses the opinion of Advocate General Rantos (see our blog post), but adds some important nuance.

Continue Reading The CJEU sets out an analytic framework on exclusionary abuses in the context of market liberalisation

On 9 December 2021, Advocate General (“AG”) Rantos delivered his Opinion in Servizio Elettrico Nazionale (Case C‑377/20), a request for a preliminary ruling from the Italian Consiglio di Stato. The case concerns the conduct of the ENEL Group (“ENEL”) in the context of the liberalisation of the electricity market in Italy. ENEL, the incumbent, allegedly used customer data obtained before liberalisation to make offers to customers in order to “transfer” them to its operator active on the liberalised market, seeking to prevent the large-scale departure of customers.

Continue Reading Advocate General Rantos Provides Sound Guidance for Non-Pricing Abuse of Dominance Analysis (Case C-377/20)

Under Article 102 of the Treaty on the Functioning of the European Union (“TFEU”), an undertaking may abuse its dominant position by “directly or indirectly imposing unfair purchase or selling prices”.  The UK Court of Appeal recently provided guidance regarding the legal test to determine whether pricing is excessive and unfair.  In March, it dismissed the UK Competition and Markets Authority’s (“CMA”) appeal in the Phenytoin case.
Continue Reading The UK Court of Appeal Clarifies the Legal Test for Excessive Pricing

On 4 November 2018, the UK government and the Competition and Markets Authority (“CMA”) issued a press release confirming that they will examine the practices of retailers that target online consumers and charge them different prices for the same product through personalised pricing.  Their research will cover a range of products sold online “such as holidays, cars and household goods”.  The announcement is unsurprisingly silent as to whether legislative changes or changes to the CMA’s enforcement policy will result.

This is the latest in a line of UK government and CMA initiatives regarding personalised pricing.  On 31 October 2018, the Financial Conduct Authority (“FCA”) announced an investigation into personalised pricing for motor and home insurance policies after finding that insurance companies were price discriminating between customers; and on 8 October 2018, the CMA published a Working Paper on the ‘use of pricing algorithms to facilitate collusion and personalised pricing’ (see our recent Covington Competition Blog post).

Continue Reading UK Government and CMA research whether online customers are targeted through personalised pricing

On 25 September 2018, Covington’s Johan Ysewyn and Jim O’Connell will speak on cartels and merger enforcement, respectively, at the 12th Annual Georgetown Global Antitrust Enforcement Symposium in Washington DC.

This Symposium serves as a leading forum for in-house and outside counsel, policymakers, corporate executives, economists and academics to discuss the most recent issues in competition law and policy.
Continue Reading 12th Annual Georgetown Global Antitrust Enforcement Symposium – Debating the Latest Issues with Covington’s Johan Ysewyn and Jim O’Connell

The UK’s Competition and Markets Authority (the “CMA”) imposed a £84.2 million (€99.7 million) fine on Pfizer yesterday. In addition, the CMA also fined distributor Flynn Pharma £5.2 million (€6.1 million).  The CMA found that Pfizer and Flynn Pharma abused their dominant positions by charging excessive and unfair prices for phenytoin sodium capsules, drugs used to treat epilepsy, in the UK.  In addition to the fines, the CMA ordered both entities to reduce their respective prices within timeframes of between 30 working days and 4 months.


Continue Reading UK CMA Imposes Record Fine on Pfizer

In its 18 October judgment the French Cour de Cassation upheld the €40.6m fine imposed on Sanofi-Aventis (“Sanofi”) by the French Competition Authority (“FCA”) in May 2013 and affirmed the judgment of the Paris Court of Appeal. The FCA found that Sanofi abused its dominant position in violation of Art. 102 of the Treaty on the Functioning of the European Union (“TFEU”) and art. L.420-2 of the French Commercial Code by denigrating generic competitors of its drug Plavix on the French clopidogrel market.
Continue Reading French Supreme Court upholds Sanofi’s generic denigration fine

The Italian Autorità Garante della Concorrenza e del Mercato (“AGCM”) has fined Aspen over €5 million for having abused its dominant position – in violation of Art. 102 of the Treaty on the Functioning of the European Union – by increasing prices of its anti-cancer drugs Alkeran (melphalan), Leukeran (chlorambucil), Purinethol (mercaptopurine) and Tioguanine (thioguanine) by up to 1,500%.  Aspen had previously acquired the rights to commercialise these drugs, internally referred to as the “Cosmos” drugs, from GlaxoSmithKline.  Aspen achieved the price increases by adopting an aggressive negotiating strategy with the Agenzia Italiana del Farmaco, including threating to stop the supply of the medicines on the Italian market (at the time, Aspen was the only company supplying these medicines in Italy).  Aspen was able to achieve price increases of between 300% and 1,500% (over the prior price).

In its analysis, the AGCM first defined the national markets using ATC5 classifications. In light of Aspen’s position in markets defined this narrowly, it concluded that Aspen held a dominant position on the various markets.
Continue Reading Italy’s AGCM Fines Aspen EUR 5 Million for Excessive Pricing