professor richard whish helsinki 11 october 2018 · 2018-11-13 · judgment of 26 november 2015 ¡...
TRANSCRIPT
Professor Richard Whish Helsinki
11 October 2018
OUTLINE OF PRESENTATION
� VERTICAL AGREEMENTS ¡ THE COMMISSION’S E-COMMERCE SECTOR
INQUIRY ¡ RECENT CASES ON VERTICAL AGREEMENTS IN
THE EU � EXCESSIVE PRICING
¡ IS THIS AN ANTITRUST CONCERN? ¡ RECENT CASES ON EXCESSIVE PRICING IN THE
EU
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THE COMMISSION’S SECTOR INQUIRY � PRIOR TO THE COMMISSION’S SECTOR
INQUIRY IT HAD NOT ADOPTED AN INFRINGEMENT DECISION IN AN ARTICLE 101 CASE ON VERTICAL AGREEMENTS SINCE PEUGEOT, 5 OCTOBER 2005
� THE RULES ON VERTICAL AGREEMENTS ARE WELL-KNOWN AND RELATIVELY STABLE ¡ BLOCK EXEMPTIONS 2790/99, 330/2010 ¡ VERTICAL GUIDELINES, 1999, 2010
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THE COMMISSION’S SECTOR INQUIRY � HOWEVER THERE HAS BEEN PLENTY OF
ENFORCEMENT AT NCA LEVEL SINCE REGULATION 1/2003 ENTERED INTO FORCE IN 2004 ¡ IN 2017 THE ECN WAS INFORMED OF 151
INVESTIGATIONS (OF ALL KINDS) ¡ 29 EUROPEAN COMMISSION; 122 NCAS; 80
PROCEEDING TO A DECISION ¡ 55% ARTICLE 101; 10% ARTICLES 101 AND 102;
35% ARTICLE 102
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THE COMMISSION’S SECTOR INQUIRY � AND THERE HAVE BEEN SEVERAL
IMPORTANT ARTICLE 267 REFERENCES ON VERTICAL AGREEMENTS SINCE 2004, EG ¡ CASE C-439/09 PIERRE FABRE, JUDGMENT OF 13
OCTOBER 2011 ¡ CASE C-345/14 SIA ‘MAXIMA LATVIJA’,
JUDGMENT OF 26 NOVEMBER 2015 ¡ CASE C-547/16 GASORBA SL, JUDGMENT OF 23
NOVEMBER 2017 ¡ CASE C-230/16 COTY GERMANY GMBH V
PARFÜMERIE AKZENTE GMBH, JUDGMENT OF 6 DECEMBER 2017
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THE COMMISSION’S SECTOR INQUIRY � THE DIGITAL AGE MEANS THAT THE
PATTERNS OF DISTRIBUTION AROUND WHICH THE EU COMPETITION RULES DEVELOPED ARE DIFFERENT
� THE STATISTICS REVEAL THAT HUGE NUMBERS OF CONSUMERS PURCHASE, OR SEARCH, ONLINE
� AND QUITE APART FROM MANUFACTURERS AND RETAILERS HAVING THEIR OWN WEBSITES, THERE ARE ALSO ONLINE MARKETPLACES AND PRICE COMPARISON TOOLS
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THE COMMISSION’S SECTOR INQUIRY � THE REPORT CONTAINS A GREAT DEAL OF
INFORMATION ABOUT HOW PRODUCTS ARE DISTRIBUTED ONLINE AND ABOUT THE KIND OF RESTRICTIONS THAT ARE TO BE FOUND
� MANUFACTURERS TEND TO REGARD MATTERS SUCH AS BRAND IMAGE AND THE QUALITY OF PRE- AND POST-SALES SERVICES AS MORE IMPORTANT THAN PRICE COMPETITION
� RETAILERS ATTACH MORE IMPORTANCE TO PRICE COMPETITION
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THE COMMISSION’S SECTOR INQUIRY � THE REPORT DESCRIBES THE VARIOUS, AND
NUMEROUS, RESTRICTIONS THAT ARE FOUND IN ONLINE COMMERCE
� THESE INCLUDE ¡ CROSS-BORDER RESTRICTIONS ¡ RESTRICTIONS ON THE USE OF MARKETPLACES ¡ PRICE RESTRICTIONS ¡ EXCLUSIVITY RESTRICTIONS ¡ PARITY PROVISIONS
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RECENT CASES ON VERTICAL AGREEMENTS � CROSS-BORDER RESTRICTIONS
¡ ARTICLE 4(B) OF REGULATION 330/2010 AND THE VERTICAL GUIDELINES DISCUSS THIS ISSUE IN RELATION TO ONLINE COMMERCE
¡ SEEMS TO HAVE WORKED WELL IN PRACTICE ¡ NOTE THE COMMISSION’S CURRENT CASES
¢ SKY/HOLLYWOOD STUDIOS ¢ GEOBLOCKING ¢ GUESS, 6 JUNE 2017 ¢ NIKE, SANRIO, UNIVERSAL STUDIOS (14 JUNE 2017)
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RECENT CASES ON VERTICAL AGREEMENTS � R E S T R I C T I O N S O N T H E U S E O F
MARKETPLACES ¡ PIERRE FABRE (2011)
¢ BAN ON INTERNET SALES A HARDCORE RESTRICTION UNLESS IT COULD BE OBJECTIVELY JUSTIFIED
¢ NOT BLOCK EXEMPTED UNDER REGULATION 330/2010 ¢ UNLIKELY TO SATISFY ARTICLE 101(3) ON AN INDIVIDUAL
BASIS ¡ COTY (2017)
¢ ONLINE SALES PERMITTED BY RETAILERS; BAN ON USE OF THIRD PARTY MARKETPLACES PERMITTED. OBERLANSGERICHT GAVE JUDGMENT IN FAVOUR OF COTY 8 JULY 2018
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RECENT CASES ON VERTICAL AGREEMENTS � HOW WIDE IS THE COTY JUDGMENT?
LIMITED TO LUXURY GOODS? � SEE THE BKA, OCTOBER 2018
¡ ‘COMPETITION RESTRAINTS IN ONLINE SALES AFTER COTY AND ASICS – WHAT’S NEXT?’
� NOTE ALSO THE COMMISSION’S INITIATION OF AN INVESTIGATION INTO AMAZON’S DUAL ROLE AS A PLATFORM FOR MERCHANTS AND A SELLER IN ITS OWN RIGHT
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RECENT CASES ON VERTICAL AGREEMENTS � R E S T R I C T I O N S O N T H E U S E O F
MARKETPLACES ¡ PING EUROPE (UK COMPETITION APPEAL
TRIBUNAL, SEPTEMBER 2018) ¢ OUTRIGHT BAN ON ONLINE SALE OF GOLF CLUBS
RESTRICTIVE OF COMPETITION BY OBJECT; NOT OBJECTIVELY NECESSARY
¢ FINE OF £1.45 MILLION REDUCED TO £1.25 MILLION ON APPEAL
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RECENT CASES ON VERTICAL AGREEMENTS � PRICE RESTRICTIONS
¡ ARTICLE 4(A) OF REGULATION 330/2010 ¡ NOTE THE COMMISSION’S FOUR DECISIONS OF
JULY 2018 ¢ ASUS, DENON & MANANTZ, PHILIPS AND PIONEER ¢ FINES OF €110 MILLION ¢ NB SETTLEMENTS!
¡ SEVERAL CASES ON THIS HAVE BEEN BROUGHT BY THE CMA IN THE UK: PRIDE MOBILITY; ROMA; ULTRA FINISHING; ITW LTD; POOLE LIGHTING
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RECENT CASES ON VERTICAL AGREEMENTS � PRICE PARITY PROVISIONS: APPLE/E-
BOOKS (2012 AND 2013) ¡ AN ‘UPSIDE DOWN’ HUB AND SPOKE CASE ¡ PRICE PARALELLISM BETWEEN THE E-
PUBLISHERS � PRICE AND NON-PRICE PARITY PROVISIONS:
AMAZON/E-BOOKS (2017) ¡ AN ‘ABUSE OF DOMINANCE’ CASE WHERE
AMAZON IS MAKING IT HARDER FOR OTHER PLATFORMS TO COMPETE WITH IT IN THE MARKET FOR THE E-TAILING OF E-BOOKS; COMMITMENTS TO DROP THE PROVISIONS, MAY 2017
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RECENT CASES ON VERTICAL AGREEMENTS � PRICE PARITY PROVISIONS: PRIVATE
MOTOR IN SURANCE , UK MARKET INVESTIGATION ¡ PROHIBITION OF PROVISION PREVENTING
INSURERS FROM MAKING THEIR PRODUCTS AVAILABLE MORE CHEAPLY ON OTHER ONLINE PLATFORMS
� PRICE PARITY PROVISIONS: HOTEL ONLINE BOOKING ¡ !!!
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IS THIS AN ANTITRUST CONCERN? � ARTICLE 102(2)(A) GIVES AS AN EXAMPLE OF ABUSE ‘DIRECTLY IMPOSING UNFAIR PURCHASE OR SELLING PRICES’
� COMPARE THIS WITH SECTION 2 OF THE SHERMAN ACT WHICH PROHIBITS ‘MONOPOLIZATION AND ATTEMPTS TO MONOPOLIZE’
� SOME LAWS – EG SINGAPORE AND HONG KONG – DO NOT SPECIFY UNFAIR PRICES AS AN ABUSE
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IS THIS AN ANTITRUST CONCERN? � THERE ARE GOOD REASONS WHY COMPETITION AUTHORITIES DO NOT PURSUE HIGH PRICES ¡ CAN THE MARKET ‘AUTO-CORRECT’? ¡ CAN THE PROBLEM BE CURED IN OTHER WAYS
(EG CONDEMN EXCLUSIONARY ABUSES; MARKET STUDIES TO IDENTIFY POOR REGULATION, PUBLIC RESTRICTIONS OF COMPETITION)
¡ CAN/SHOULD A COMPETITION AUTHORITY BECOME A PRICE REGULATOR?
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IS THIS AN ANTITRUST CONCERN? � REASONS FOR NON-INTERVENTION
¡ WHEN IS A PRICE EXCESSIVE? ¡ WHO SHOULD DECIDE WHAT A NON-EXCESSIVE
PRICE IS? � BUT NEVER SAY NEVER!
¡ WHAT IF ENTRY IS IMPOSSIBLE? THE MARKET CANNOT CORRECT ITSELF (AKKA)?
¡ AND WHAT ABOUT CASES OF REGULATORY FAILURE/GAPS (PFIZER AND FLYNN)
¡ POPULISM/HIPSTER ANTITRUST? Richard Whish 11 October 2018 18
RECENT CASES ON EXCESSIVE PRICING � SEE ASPEN, DECISION OF THE ITALIAN COMPETITION AUTHORITY, 2016, UPHELD ON APPEAL TO THE TAR LAZIO, 13 JUNE 2017
� AND NOW SEE THE COMMISSION’S INVESTIGATION OF ASPEN IN OTHER MS
� IN THE UK SEE PFIZER AND FLYNN, CMA DECISION OF 2016, CAT JUDGMENT OF 2018
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RECENT CASES ON EXCESSIVE PRICING � THE CAT SAID THAT THE CMA HAD
MISAPPLIED THE UNITED BRANDS TEST ¡ IS THE PRICE EXCESSIVE WHEN COMPARED
WITH COST/ECONOMIC VALUE? ¡ IF SO IS THE PRICE UNFAIR IN ITSELF OR
WHEN COMPARED TO OTHER PRODUCTS? ¢ THE CAT SAID THAT THE CMA HAD MISAPPLIED BOTH
LIMBS OF THIS TEST
� THE CMA IS PURSUING OTHER CASES: CONCORDIA, ACTAVIS
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RECENT CASES ON EXCESSIVE PRICING � NOTE ALSO GAZPROM: ARTICLE 9 COMMITMENTS ACCEPTED MAY 2018 IN RELATION BOTH TO EXCESSIVE PRICES AND CONTRACTUAL RESTRICTIONS OF CROSS-BORDER TRADE
� AKKA: JUDGMENT OF THE COURT OF JUSTICE IN 2017 ON HOW TO DETERMINE WHETHER THE PRICES OF A COPYRIGHT COLLECTING SOCIETY WITH A LEGAL MONOPOLY WERE EXCESSIVE
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RECENT CASES ON EXCESSIVE PRICING � THE DUTCH ACM IS INVESTIGATING MEDICINE
PRICES – PARR INTERVIEW, 5 OCTOBER 2018 � A DANISH COURT CONCLUDED THAT A FINDING
THAT ELSAM WAS GUILTY OF EXCESSIVE PRICING WAS INCORRECT: 24 MAY 2018
� THE AUSTRIAN AUTHORITY IS INVESTIGATING POSSIBLE EXCESSIVE PRICING IN AIRFARES
� AND NOTE THE BKA’S FACEBOOK INVESTIGATION – EXCESSIVE PRICING?
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RECENT CASES ON EXCESSIVE PRICING � THE FRENCH AUTORITÉ DE LA
CONNCURRENCE IMPOSED A FINE OF EUR 0.2 MILLION ON SANICORSE FOR EXCESSIVE PRICING IN CLINICAL WASTE MANAGEMENT, 20 SEPTEMBER 2018
� THE DANISH COMPETITION AUTHORITY FOUND CD PHARMA GUILTY OF EXCESSIVE PRICES, 31 JANUARY 2018
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CONCLUSION � THERE ARE SOUND REASONS FOR
REFRAINING FROM BRINGING CASES ON EXCESSIVE PRICING
� BUT NEVER SAY NEVER! � THERE ARE NUMEROUS RECENT AND
CURRENT CASES
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THANK YOU FOR YOUR ATTENTION!
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