Peter L’Ecluse

1. Background of Case On 18 March 2021, the Italian highest administrative court, the Consiglio di Stato (the CS), decided to refer a case under its review for the second time to the Court of Justice of the European Union (CJEU) pursuant to Article 267 TFEU. The case finds its origin in a (...)

On 18 March 2021, the federal Chamber of Representatives adopted a bill seeking to exclude the creation of local hospital networks (locoregionaal ziekenhuisnetwerk / réseau hospitalier locorégional) and any subsequent change in their composition from the application of the Belgian merger control (...)

On 18 March 2021, the Official Journal of the European Union published a European Commission (Commission) Notice on “tools to fight collusion in public procurement and on guidance on how to apply the related exclusion ground” (the Notice; available here). The Notice develops the tools which the (...)

On 10 March 2021, the Belgian Competition Authority (Belgische Mededingingsautoriteit / Autorité belge de la Concurrence - BCA) published its list of enforcement priorities for 2021 (See, website of BCA, in Dutch and in French). The document discusses the impact of the Covid-19 pandemic on the (...)

On 25 February 2021, the federal government submitted to the federal Chamber of Representatives a draft bill modifying the consolidated Law of 10 July 2008 regarding hospitals and other institutions of care (the Law), as regards the application of the merger control rules to clinical networking (...)

The Spanish Competition Authority, the Comisión Nacional de los Mercados y la Competencia (“CNMC”), imposed total fines of € 5,76 million on Novartis Groupe France and its Spanish subsidiary Advanced Accelerator Applications Ibérica, SLU (“AAA”), Glo Holdco and its Spanish subsidiary Curium Pharma (...)

On 28 January 2021, the Chamber of Representatives of the federal Chamber of Representatives adopted, in plenary session, Bill 1515 of 16 September 2020 “on various provisions relating to the economy” (Wetsontwerp houdende diverse bepalingen inzake Economie / Projet de loi portant dispositions (...)

Reports that Leadiant is also in the crosshairs of the Spanish competition authority were confirmed today. The Comisión Nacional de los Mercados y la Competencia announced that it started formal proceedings against Leadiant Biosciences Spa and Leadiant Biosciences LTD on the grounds that these (...)

The Bundeskartellamt, the German competition authority (BKA), authorised today under German merger control rules a proposed joint venture company (JV) to run a digital healthcare platform for the purchase and ordering of both prescription and over-the-counter medicines and other functions such (...)

The UK Competition and Markets Authority (CMA) published today its decision accepting binding commitments from Essential Pharma (EP) to continue supplying for at least 5 years a medicine for the first line treatment of bipolar disorder and other mental conditions at a price considered (...)

On 7 December 2020, the European Commissioner responsible for competition policy Margrethe Vestager delivered a speech at the OECD Global Forum on Competition entitled “Competition policy: time for a reset?” in which she discussed the Commission’s priorities for 2021 (see, attachment). These (...)

On 26 November 2020, the European Commission (the Commission) brought to an end a long running competition case by finding against Cephalon and Teva on account of a “pay-for-delay” patent settlement agreement involving modafinil, the active substance of a sleeping disorder medicine (see, attached (...)

On 25 November 2020, the European Commission (the Commission) unveiled its Pharmaceutical Strategy for Europe (PSE), a wide-ranging document that discusses a series of broad policy statements, tentative considerations and concrete measures to tackle the many challenges faced by the (...)

On 25 November 2020, the Court of Justice of the European Union (the CJEU) delivered a judgment in case C-372/19 holding that the fee structure for music played at festivals adopted by collecting societies such as SABAM is not necessarily abusive under Article 102 TFEU. The case had come before (...)

Early last month, the Competition and Markets Authority (CMA) started an investigation into Essential Pharma because of suspicions that the firm might have abused an allegedly dominant position by taking steps to withdraw Priadel® from the UK market. This is a lithium based medicine indicated (...)

The Polish competition authority, the Office of Competition and Consumer Protection ( UOKiK ), has proven to be an energetic enforcer of the competition rules. Over the past few days, UOKiK found itself in the limelight because of two new distinct inquiries in the pharmaceutical sector that (...)

In a judgment delivered on 19 November 2020, the Markets Court of the Brussels Court of Appeal (Marktenhof / Cour des marchés) (the Markets Court) annulled the decision adopted on 29 June 2020 by the Competition College (Mededingingscollege / Collège de la concurrence) of the Belgian Competition (...)

On 19 November 2020, the Competition College (Mededingingscollege / Collège de la concurrence) of the Belgian Competition Authority (Belgische Mededingingsautoriteit / Autorité belge de la Concurrence - the BCA) imposed interim measures on the Royal Belgian Football Association (the RBFA) at the (...)

The Italian competition authority, the “Autorità garante della concorrenza e del mercato” ( AGCM ), announced yesterday that it would continue its inquiry into the practices of pharmaceutical company Leadiant Biosciences ( Leadiant ) until 30 June 2021 (see, attached extract from AGCM’s latest (...)

On 23 October 2020, the European Commission (the Commission) published a notice (the Notice) inviting interested third parties to comment on the authorisation granted by Belgium to Derby NV, a local subsidiary of the betting and gambling company Ladbrokes PLC and operating in Belgium under the (...)

On 7 October 2020, the Markets Court of the Brussels Court of Appeal (Marktenhof / Cour des marchés) (the Markets Court) partially annulled the decision of 26 May 2009 (the 2009 Decision), for lack of admissible evidence, by which the Belgian Competition Authority (Belgische (...)

On 6 October 2020, the Competition and Markets Authority ( CMA ) started an inquiry into Essential Pharma to determine whether that company abused an allegedly dominant position when announcing the withdrawal from the UK market of Priadel®, a lithium based medicine indicated for the first line (...)

On 16 October 2020, the European Commission (the Commission) published a notice (the Notice) inviting interested third parties to comment on Belgium’s proposed Capacity Mechanism (the CM). The Notice was published as part of an in-depth State aid investigation launched by the Commission on 21 (...)

On 10 September 2020, the Regional Court of Munich (“Munich Court”) ruled in favour of Sharp that Daimler had infringed a standard essential patent (“SEP”) of Sharp. Sharp is the patent holder of EP 2667676B1 which is standard essential for the Long-Term Evolution (“LTE”) telecommunications (...)

The Romanian Competition Authority announced on 25 August 2020 that it imposed a fine of 11.9 million lei (approximately EUR 2.5 million) on GlaxoSmithKline (GSK) for its failure to observe in full commitments which it had given earlier to allow the competition authority to terminate an inquiry (...)

Today, the European Commission (the Commission) started a market test inviting comments from interested parties on commitments offered by Aspen Pharmacare Holdings (Aspen) to address the Commission’s concerns over excessive pricing for a range of off-patent cancer medicines (see, attached (...)

On 2 June 2020, the UK High Court delivered a judgment in a case pitting pharmaceutical companies Teva UK Limited (“Teva”) against Chiesi Farmaceutici (“Chiesi”) in which Mr Justice Birss ruled that complying with a court-ordered disclosure in patent infringement proceedings does not breach Article (...)

On 1 June 2020, the Italian competition authority (“L’Autorità Garante della Concorrenza e del Mercato”) authorised a scheme that would allow disposable surgical masks to be distributed and sold in pharmacies and health product retail outlets (see, attached press release). It did so at the request (...)

On 5 May 2020, the German Federal Court of Justice (Bundesgerichtshof - the “FCJ”) delivered a judgment in a case pitting Sisvel against Haier which deals with the licensing of Standard Essential Patents (“SEP”) on terms that are fair, reasonable and non-discriminatory (“FRAND”). This is the first (...)

On 3 April 2020, the Dutch competition authority (Autoriteit Consument en Markt or “ACM”) published a press release expressing its satisfaction with commitments made by Roche Diagnostics (“Roche”) regarding the supply of testing materials for the SARS- CoV-2 test. Roche, which the ACM says has a (...)

In February 2020, the Regional Court of Munich published a guidance document that sets out how that court intends to apply the landmark ruling of the Court of Justice of the European Union (the “ECJ”) in Huawei v. ZTE (Case C-170/13). The ECJ’s ruling provided the practical steps which Standard (...)

On 30 January 2020, the Court of Justice of the European Union (the “ECJ”) handed down its judgment in Case C-307/18, Generics (UK) and Others. This case marks the first time the ECJ has ruled on patent settlement agree- ments between originator pharmaceutical companies and generic producers. (...)

On 22 July 2019, the Barcelona Court of Appeal (“Audiencia Provincial de Barcelona”) delivered a judgment on an appeal by Schweppes SA (“Schweppes”) against a judgment of the Commercial Court of Barcelona in which it held that the evidence provided by Red Paralela, a parallel importer, was (...)

On 10 May 2019, the Antwerp Enterprise Court (the “Court”) referred a request for a preliminary ruling to the Court of Justice of the European Union (the “ECJ”) in two separate cases between Belgian festival organisers Weareone. World BVBA (the organisers of Tomorrowland) and Wecandance NV (the (...)

On 7 May 2019, the Court of Appeal of the Hague delivered its judgment in a case pitting Philips against ASUS regarding the alleged infringement of Philips’ European patent EP 1 623 511, which was considered essential to the High Speed Uplink Packet Access (“HSUPA”) protocol of the Universal (...)

On 16 April 2019, the Paris Court of Appeal delivered a judgment in Conversant v. LG, a case dealing with the concept of licensing under fair, reasonable and non-discriminatory (“FRAND”) terms. While the court did not set a much-anticipated FRAND royalty rate, the case is noteworthy because of (...)

According to a press release issued on 7 March 2019, the European Commission (“Commission”) has formally accepted the commitments offered by Disney, NBC Universal, Sony Pictures, Warner Bros. and Sky in Case 40.023, Cross-border access to pay-TV, under Article 9 of Regulation 1/2003. The (...)

On 30 January 2019, the UK Court of Appeal issued a judgment in the case pitting Conversant Wireless against two telecommunications companies, Huawei and ZTE. In this case, Conversant was seeking injunctive relief and damages against both companies in relation to the alleged breaches of its (...)

On 12 December 2018, the EU General Court (“GC” or “Court”) dismissed the application for annulment which Canal + SA (“Canal +”) had brought against a European Commission (“Commission”) decision that had made commitments offered by Paramount Pictures Ltd (“Paramount”) in the context of copyright (...)

On 12 December 2018, the General Court (“GC”) once again passed judgment on a number of patent settlement agreements in the pharmaceutical sector. It had already reviewed such agreements in September 2016 when it upheld the decision of the European Commission (the “Commission”) in the Lundbeck (...)

On 20 December 2017, the Court of Justice of the European Union (“ECJ”) handed down its judgment in Case C-291/16 Schweppes v Red Paralela and Others. The ECJ held that the owner of a trademark may not oppose the parallel importation of goods bearing an identical trademark but originating in (...)

On 12 September 2017, Advocate General Mengozzi (“AG”) delivered an opinion in the Schweppes case in the context of a request for a preliminary ruling to the Court of Justice of the European Union (“ECJ”) from a Spanish Court. In particular, the AG proposed to develop the case-law on the exhaustion (...)

On 17 July 2017, the European Commission issued a Statement of Objections against pharmaceutical companies Teva and Cephalon (which is now a subsidiary of Teva) alleging that Teva breached Article 101 TFEU by concluding an agreement with Cephalon not to market a cheaper generic version of a (...)

On 10 April 2017, the European Commission published its roadmap on “Standard Essential Patents for a European digitalised economy” (the “Roadmap”) with the aim of supporting the development of the 5G mobile communications standard (“5G”) and the Internet of Things (“IoT”) universe. A standard (...)

On 5 April 2017, Justice Birss of the English High Court of Justice issued a judgment in a license dispute involving Standard Essential Patents (“SEPs”) opposing Unwired Planet, a US based patent assertion entity, against Huawei, a Chinese telecommunications company. Unwired Planet sued Huawei (...)

On 26 July 2016, the Commission made legally binding the commitments offered by Paramount Pictures (“Paramount”) as it considered that they adequately addressed its concerns regarding specific contractual clauses restricting passive sales. In July 2015, the Commission had expressed concerns that (...)

On 7 July 2016, the Court of Justice of the European Union (the “ECJ”) issued its judgment on a request for a preliminary ruling from the Paris Court of Appeal, which had enquired whether Article 101 TFEU precludes a licensee from paying royalties pursuant to a licensing agreement when the patent (...)

On 17 March 2016, Advocate General Wathelet issued his opinion on a request for a preliminary ruling from the Paris Court of Appeal, which inquired as to whether Article 101 TFEU precludes a licensee from paying royalties pursuant to a licensing agreement when the patent, which is the subject (...)

On 30 July 2013, the UK’s Intellectual Property Office published a study of patent thickets. Patent thickets have been described as a dense web of overlapping intellectual property rights and claims that are held by several (competing) companies. The purpose of the report is to determine (...)

In a judgment of 28 June 2013, the Brussels Court of Appeal requested a preliminary ruling from the Supreme Court to clarify the notion of “full jurisdictional power” (volle rechtsmacht/pouvoir de pleine jurisdiction). This concept defines the scope of review of the Courts of Appeal in many (...)

On 6 May 2013, the European Commission announced that it had formally sent Motorola Mobility a Statement of Objections (SO) over the company’s alleged misuse of mobile phone standard essential patents (SEPs). The Commission believes that Motorola Mobility abused its dominant position in (...)

On 12 April 2013, the EU General Court (GC) handed down its judgments in the appeals brought by the International Confederation of Societies of Authors and Composers (CISAC) and 21 of its member collecting society associations against an earlier decision of the European Commission finding (...)

In a judgment of 13 February 2013, the Brussels Court of Appeal annulled the decision of the Competition Council to impose a fine of EUR 29,121 on VEBIC, the Flemish Bakers’ Association, for having fixed prices for bread. Following the liberalisation of bread prices on 1 July 2004, VEBIC (...)

On 14 February 2013, the Italian Competition Authority (the “Authority”) announced that it had opened an investigation against Genentech Inc., Hoffmann-La Roche Ltd, Novartis AG, Novartis Farma S.p.A. and Roche S.p.A., over suspicions that these may have been operating an illegal cartel in (...)

On 31 January 2013, the European Commission announced that it had sent a Statement of Objections (“SO”) to pharmaceutical companies Johnson & Johnson (“J&J”) and Novartis over suspicions that an agreement between their Dutch subsidiaries in relation to Fentanyl (a strong pain killer (...)

On 22 January 2013, it was reported that the Italian Council of State – Italy’s highest jurisdiction in competition cases – had reinstated a € 5.1 million fine against Bayer initially imposed on the company by the Italian Competition Authority (“ICA”) for its alleged abuse of dominant position (...)

On 21 December 2012, the European Commission announced that it had sent Samsung a Statement of Objections (“SO”) over its alleged misuse of mobile phone standard essential patents. In January 2012, the Commission had opened a formal investigation against Samsung Electronics following (...)

On 19 December 2012, the Spanish Competition Authority (“CNC”) announced that it had opened formal proceedings against Pfizer over concerns that the company may have engaged in anti-competitive practices in the market for medicines based on latanopost for the treatment of glaucoma, contrary (...)

On 25 July 2012, the European Commission announced that it had sent a formal Statement of Objections (“SO”) to Danish pharmaceutical company Lundbeck over its conclusion of so-called “pay-for-delay” agreements with four generic producers of citalopram, a antidepressant medicine. In its SO, (...)

In a preliminary ruling delivered on 12 July 2012, the Court of Justice of the EU ("ECJ") provided important guidance on the status, under EU competition law, of public authorities that maintain a commercial registry database of companies and that make data contained therein publicly (...)

On 5 April 2012, the Competition Council imposed a fine of € 75,000 on Belgian telecommunications company Belgacom for providing an incomplete response to a request for information in the context of the merger review of Belgacom’s acquisition of The Phone House. During the review of the (...)

On 5 April 2012, the Competition Council imposed a fine of € 75,000 on Belgian telecommunications company Belgacom for providing an incomplete response to a request for information in the context of the merger review of Belgacom’s acquisition of The Phone House. During the review of the (...)

On 17 January 2012, the Italian Competition Authority (“Autorità Garante della Concorrenza e del Mercato”) announced that it had fined pharmaceutical group Pfizer € 10.6 million for abuse of dominance in the market for medicines based on latanopost for the treatment of glaucoma. Pfizer holds (...)

On 23 December 2011, the Belgian Competition Council conditionally cleared the acquisition by Belgian telecommunications company Belgacom of The Phone House, a telecommunications retail network. Following an in-depth, phase II investigation, the College of Competition Prosecutors (...)

On 6 July 2011, the European Commission announced that it has closed its antitrust investigation into allegations by Spanish pharmaceutical company Almirall that the German pharmaceutical company Boehringer Ingelheim filed for unmeritous patents in the area of new treatments for lung diseases (...)

On 5 July 2011, it was announced that the Italian Competition Authority (“ICA”) has fined Bayer CropSciences and Bayer Italia AG (together, “Bayer”) € 5.1 million for abuse of their dominant position on the market for the production and commercialisation of fosetyl-based fungicides (i.e., pesticides (...)

In a judgment of 17 May 2011, the Brussels Court of Appeal confirmed the Belgian Competition Council’s decision of 29 November 2010 amending a condition that had been imposed in 2003 on cable network operator Telenet’s acquisition of pay-TV provider Canal+. The condition in question (...)

On 28 April 2011, the European Commission opened of its own motion formal competition proceedings against Cephalon, Inc. (“Cephalon”) and Teva Pharmaceutical Industries, Inc. (“Teva”) on account of a patent settlement agreement between the parties. Under the agreement, Teva undertook not to sell (...)

On 20 April 2011, the German Competition Authority (“Bundeskartellamt”) cleared the establishment of a joint venture by Apple, EMC, Microsoft and Oracle, CPTN, the purpose of which is to acquire hundreds of software patents from Novell. The venture has also recently won US regulatory approval. (...)

The Organisation for Economic Cooperation and Development (“OECD”) recently published a paper reporting the outcome of a policy roundtable discussion on standard-setting and competition that took place in June 2010. The roundtable involved delegates from competition authorities around the world, (...)

According to press reports, the UK Department of Health, together with 10 health authorities and 144 primary care trusts, has launched an action for damages against Reckitt Benckiser in the High Court. This follows the OFT’s decision to fine Reckitt Benckiser £ 10.2 million for abusing its (...)

On the 14 December 2010 that the European Commission published its new horizontal guidelines (see article above and also the Cartels and Horizontal Agreements section of this newsletter), it also adopted a new R&D Block Exemption Regulation (“New R&D BER”). While the New R&D BER (...)

On 28 October 2010, the Court of Justice of the European Union (“ECJ”) ruled that Canon Kabushiki Kaisha (“Canon”), a Japanese manufacturer of copying machines, cameras, optical and other products, could prevent a Bulgarian trader from importing ink cartridges from Hong Kong into the EU if it were (...)

On 3 June 2010, the Court of Justice of the European Union (“ECJ”) added another judgment to its line of case-law concerning the trademark exhaustion rules. In Case C-127/09, Coty Prestige Lancaster Groupv. Simex Trading, the ECJ ruled that a German trader cannot sell imported perfume “testers” (...)

In its recently published judgment in Caud/Chanel, the French Supreme Court (Cour de Cassation) followed the approach of the European Court of Justice (“ECJ”) in Copad/Christian Dior Coutureconcerning the exhaustion of trademark rights in respect of luxury goods. In that judgment, the ECJ held (...)

Several developments that took place during December 2009 suggest that the issue of standards-setting is one that is currently of renewed interest to the European Commission, and likely to remain that way under the next Commission. On 10 December 2009, the European Commission welcomed the (...)

Several developments that took place during December 2009 suggest that the issue of standards-setting is one that is currently of renewed interest to the European Commission, and likely to remain that way under the next Commission. US chip manufacturer Rambus had previously found itself in (...)

Several developments that took place during December 2009 suggest that the issue of standards-setting is one that is currently of renewed interest to the European Commission, and likely to remain that way under the next Commission. Speaking during a conference held in Brussels on 3 December (...)

On 25 November 2009, the UK High Court of Justice ruled, inter alia, that a competition law defence raised by M-Tech Data Limited (“M-Tech”) stood no real prospect of success in an application for summary judgment brought by Sun Microsystems (“Sun”), concerning the defendant’s infringement of Sun‘s (...)

On 19 October 2009, the participants of a European Commission Roundtable on the online distribution of music signed a joint statement setting out general principles that aim to underpin the online distribution of music in the future. Participants in the Roundtable comprised Amazon, BEUC, EMI, (...)

In a speech given in Brussels on 15 October 2009, EU Competition Commissioner Neelie Kroes gave the clearest indication yet of the Commission’s current thinking on standard-setting. Among others, Commissioner Kroes indicated that companies will have to reveal licensing costs in advance if they (...)

On 12 June 2009, the US chip manufacturer Rambus announced that it has reached a “tentative settlement” in connection with proceedings brought by the European Commission claiming that Rambus has been abusing its dominant position by charging unreasonable royalties for patents relevant to Dynamic (...)

According to a press release, on 6 May 2009 the German Federal Civil Court of Justice (the German Court of Justice) handed down a judgment setting out the conditions of a so-called compulsory licence defence. Under such a defence, a patent user facing an infringement suit from the patent holder (...)

On 23 April 2009, in its judgment in Case C-59/08 Copad SA v Christian Dior couture SA, the European Court of Justice (“ECJ”) shed further light on the often contentious topic of exhaustion of trade mark rights in respect of luxury goods. Christian Dior Couture SA (“Dior”) had concluded a licence (...)

On 16 May 2009, a notice was published in the Official Journal of the EU announcing that Protégé International is taking the European Commission to court over its January 2009 decision to reject a competition law complaint brought by Protégé International against Pernod Ricard. Protégé (...)

On 22 December 2008, the European Court of Justice (“ECJ”) gave judgment in a reference for a preliminary ruling from the Austrian Supreme Court regarding the rules governing the repackaging of parallel-traded pharmaceuticals (The Wellcome Foundation Ltdv. Paranova Pharmazeutika Handels GmbH). (...)

The European Commission recently published on its website comments it has received from industry on an internet commerce “issues paper” published by DG Competition in September 2008. Respondents as diverse as, among others, the British Sky Broadcasting Group, Estée Lauder, Google, Hewlett-Packard, (...)

On 9 October 2008, Advocate General Sharpston issued her opinion in Case C-276/05 (The Wellcome Foundation Ltdv Paranova Pharmazeutika Handels), a preliminary reference to the European Court of Justice (“ECJ”) from the Austrian Supreme Court. These proceedings add yet another episode to the (...)

In a judgment dated 19 August 2008 (published only recently), the District Court of Haarlem in the Netherlands ruled on a dispute between the Dutch collecting society BUMA (“BUMA”) and the UK collecting society Performing Right Society Limited (“PRS”), regarding the licensing by BUMA of PRS‘ (...)

On 8 July 2008, the EFTA Court issued a judgment concerning the interpretation of First Council Directive 89/104/EEC to approximate the laws of the Member States relating to trademarks (the “Trademark Directive”), in which it adopted the principle of mandatory EEA-wide exhaustion of trademark (...)

On 13 June 2008, the European Federation of Pharmaceutical Industries and Associations (“EFPIA”) published on its website a 110-page long document that it has submitted to the European Commission, as a response to the latter’s ongoing pharmaceutical sector inquiry. In contrast to claims made by (...)

On 19 May 2008, the UK Competition Commission (the “CC”) published its proposed new merger remedy guidelines, which for the first time recognise the possibility that intellectual property (“IP”) and behavioural remedies might be appropriate in certain circumstances. The draft guidelines are (...)

On 18 April 2008, the Dutch Supreme Court (Hoge Raad) handed down a judgment relating to the burden of proof in a trade mark exhaustion case. The judgment refines earlier case-law on the matter. In the case at hand, various luxury cosmetic brands, including Joop!, Jil Sander and Davidoff, had (...)

On 9 January 2008, the European Commission announced that it has dropped its antitrust investigation into Apple after the US technology company agreed to lower the prices it charges for music downloads from its UK iTunes online music store within six months. This move by Apple will standardize (...)

On 3 January 2008, the European Commission adopted a Communication entitled “Creative Content Online in the Single Market”, which is intended to address some of the major issues raised by online distribution of creative content. The Communication also launched a public consultation with a view to (...)

Nokia and Qualcomm have entered into a 15-year licensing agreement for chipset technology for mobile phones, giving Nokia a licence to use Qualcomm‘s patents in its handsets and certain infrastructure equipment. Nokia has also agreed «not to use any of its patents against Qualcomm«, meaning that (...)