Competition

Under Belgian law, legal advice provided by in-house counsel to their employers is covered by the protection for legal privilege.  That is the conclusion reached by the Brussels Court of Appeal in its judgment of 5 March 2013 in the Belgacom case (Case 2011/MR/3).  In addition to the legal advice itself, the legal privilege covers all related correspondence, requests for advice, and documents created in preparation of the advice. 
Continue Reading Advice by In-House Counsel Protected by Legal Privilege under Belgian Law

EU competition law imposes significant constraints on the ability of dominant firms in the life sciences sector to freely determine the price of their products. Price cuts and loyalty-inducing rebates can be abusive. So can excessively high or discriminatory prices.  Vertically-integrated firms that control an important input must also ensure that the prices they charge upstream and downstream leave a sufficient margin to downstream competitors that rely on the upstream input.

Although these constraints apply only to firms that hold a dominant position on the relevant market where they are active, the importance of these limitations should not be underestimated considering that competition authorities are adopting very narrow market definitions.

Continue Reading The Limits Imposed by EU Competition Law on Pricing by Dominant Firms in the Life Sciences Sector

The fight against bid-rigging (i.e. collusion in public tenders) has become a major enforcement priority for national competition authorities.  Companies in the life sciences sector are increasingly targeted by bid-rigging investigations.[1] This development is promoted by the OECDICN and UNCTAD, which have done much work to sensitize competition and procurement officials about the harm caused by bid-rigging.  In February 2013, a WTO working paper warned that “bid rigging can raise the price paid by governments for goods and services in the order of 20-30%”.[2]  In a similar vein, the OECD emphasizes the need to contain public spending on healthcare, which has risen by over 70% per capita since the early 1990s and absorbed on average over 9% of GDP in 2010.[3]  In this context, national authorities consider competition enforcement against bid-rigging as a tool to achieve value for money in healthcare public tenders.

Examples of national cases in 2008-2012
Continue Reading Combatting Bid-Rigging in Healthcare Markets: Increased Enforcement Activity

The times when private antitrust damages claims were not a serious risk in the European Union are gone.  The European Commission and national competition authorities are actively promoting follow-on damages claims by private plaintiffs, and national health authorities are themselves bringing huge claims for damages arising from anticompetitive practices.

The following are examples of recent claims:

  • Servier.  In parallel with the EU Commission’s investigation into Servier’s reverse payment patent settlements concerning perindopril, a number of UK health authorities have filed damage claims seeking more than ₤230 million in damages from Servier.
  • Reckitt Benckiser. In connection with the OFT’s 2010 decision imposing a ₤10.2 million fine on Reckitt Benckiser for practices related to Gaviscon Original Liquid, the UK health authorities and a generic competitor have brought follow-on damage claims seeking approximately £89 million from Reckitt Benckiser.
    Continue Reading Private Antitrust Damages Claims in the Pharmaceuticals Sector: Gaining Momentum

In February 2013, the French Competition Authority (“FCA”) launched an inquiry into the pharmaceutical sector, examining each level of the medicinal distribution chain (pharmaceutical suppliers, wholesalers and retailers).  The FCA is likely to focus on a broad range of issues, including:

  • Generic entry: The inquiry will likely examine pay-for-delay arrangements and other issues relating to generic entry.  Both the FCA and the European Commission are currently investigating several cases relating to practices allegedly aimed at disrupting generic entry.   The FCA has also indicated that, following the sector inquiry, it may publish specific guidance on practices affecting generic entry.
  • Parallel trade: In 2007, the FCA cleared  (subject to certain commitments) the quota systems implemented by several major pharmaceutical companies.  Quota systems are aimed at rationalising wholesale distribution and limiting parallel trade.  The FCA may use the sector inquiry to revisit the issue of parallel trade and re-examine the quota systems.
    Continue Reading French Competition Authority Launches Pharmaceutical Sector Inquiry

Originally published as Covington E-Alert on February 26, 2013

On  20  February  2013,  the  European  Commission  published  for  consultation  its  proposal  for revisions to the EU technology transfer competition regime.  The consultation period runs until 17 May 2013.  The new regime will be adopted before April 2014.  The EU’s approach to the application of competition

Originally published as Covington E-Alert on December 10, 2012

On 6 December 2012, the EU Court of Justice dismissed AstraZeneca’s appeal of the General Court’s judgment in AstraZeneca v Commission. The Court of Justice affirmed the reasoning and holdings of the General Court and rejected all of AstraZeneca’s arguments, including its challenge to the General

Article originally published in Covington E-Alert, 10 December 2012

On 6 December 2012, the EU Court of Justice dismissed AstraZeneca’s appeal of the General Court’s judgment in AstraZeneca v Commission. The Court of Justice affirmed the reasoning and holdings of the General Court and rejected all of AstraZeneca’s arguments, including its challenge to the General

Originally published as Covington E-Alert on May 17, 2012

On 15 May 2012, the Advocate General of the EU Court of Justice issued his opinion on the appeal of the General Court’s judgment in AstraZeneca v. Commission.1 The Advocate General largely agreed with the reasoning and holdings of the General Court, and recommended that the