competitionlaw

By a II-Phase decision the European Commission has unconditionally cleared the proposed acquisition of the Shell's Harburg refinery assets by Nynas by applying the failing firm defence (FFD) to an unprofitable division and also taking into account the economic efficiencies expected from the merger (Case No COMP/M.6360, NYNAS/Shell/Harburg Refinery). The failing firm defence under EU Competition Law Under the EU Merger Regulation the FFD may be invoked by the parties to an otherwise problematic merger to have that transaction cleared, when there are no causal links between the merger and the deterioration of competition. The Commission has crafted a three-limb test that sets out the three cumulative criteria that must be met in order for the FFD to apply: i) the firm would in the near future exit the market due to financial difficulties unless taken over by another firm; ii) there is no alternative purchase than the notified merger; and iii) in the absence of the merger, t

The Regional Administrative Court of Latium (Tar Lazio) has recently uphold all the rulings of the Italian Competition Authority (ICA) inits decision in the Roche/Novartis case. The ICA imposed on Roche and Novartis a fine of Euro 180 million for an anti-competitive practice breaching Article 101 TFEU. Roche and Novartis discouraged the off-label use of Avastin to treat glaucoma pathologies in favour of the much more expensive Lucentis by alleging that such use of Avastin was risky. Roche and Novartis challenged the ICA decision before the Tar Lazio that rejected the appeal. In the view of the Tar Lazio, the ICA based its findings on many internal documents of the parties showing that they implemented a strategy of differentiation of Lucentis and Avastin. Their goal was to persuade health professionals that the off-label intravitreal use of Avastin was risky for patients. In this way the parties promoted the use of the on-label Lucentis drug to the detriment of the cheaper A

So, what do classic Western movies and competition law enforcement in the pharmaceutical sector have in common? Probably not so much. Watching Western movies through the lenses of a competition law geeks, the typical plots of those movies pitted colonies going to West to expand into new markets against Redskins that tried to prevent the market entry of those new operator. Alike, in competition investigations so far conducted in the pharmaceutical sector, drug originators are found to have frustrated or prevented the market entry of generics. Yet, the IncrementoPrezzo Farmaci Aspen (Aspen) recently opened by the Italian Competition Authority (ICA) departed from typical scenarion. Indeed, in Aspen the ICA started a n Article 102 TFEU investigation against Aspen, a South African manufacturer of generic drugs, alleging that it had imposed excessive prices on the national health system. Aspen was found to have a dominant position in the markets of anti-cancer drugs based on the act