Commission fines car lighting system producers

The European Commission has fined Automotive Lighting and Hella EUR27 million for their participation in a cartel relating to car lighting systems. 

The decision was reached under the cartel settlement procedure, resulting in a reduction of 10% in fines.

Valeo received full immunity from fines under the 2016 Leniency Notice.  

The Commission found that for over three years the companies co-ordinated prices and other trading conditions for the supply of vehicle lighting systems.  They also coordinated price increase on spare parts and co-ordinated how long after mass production they would end contractual availability of the relevant spare parts.

The Commission has already found competition law infringements in several auto parts markets.  The latest decision is the first involving replacement parts for cars that are out of production.

European Commission investigates Nike, Universal Studios and Sanrio

 

European Commission investigates Nike, Universal Studios and Sanrio

The European Commission has opened separate antitrust investigations into the distribution and licensing arrangements of Nike, Universal Studios and Sanrio.

The Commission suspects that the companies’ practices may unlawfully restrict distributors from selling cross-border and over the internet within the EU single market.

The products under investigation include clothes, shoes, phones, bags and toys on which an image, logo or text is applied during the manufacturing process.  The manufacturers can only include an image or text if they have a licensing agreement with the owner of the underlying intellectual property rights.

Nike is the licensor of rights for Barcelona Football Club, Universal owns the rights for “Despicable Me” and “Minions” and Sanrio owns the rights for “Hello Kitty”.

A Commission spokesman has said that the investigation has not been prompted by complaints.

The practices of concern raise similar issues to those in the Commission’s e-commerce sector inquiry which highlighted the antitrust issues arising in selective distribution agreements.  However, it appears that the investigations are separate from the sector inquiry.

Last week the Commission opened a similar inquiry into the distribution agreements of Guess, the US clothing manufacturer.

The investigations show that the Commission has a continued appetite to open enforcement proceedings in cases involving vertical restraints. The latest investigations will revisit the interplay between restrictions on competition and limitations that are inherent in licensing agreements and show the Commission’s vigilance to tackle impediments to cross-border trade.

European Commission investigates Guess distribution agreements

The European Commission has launched an investigation into US clothing company Guess for restricting distributors from selling to consumers within the EU single market.

The Commission has stated that it believes that Guess may be banning cross-border sales within the EU.

The investigation follows the Commission’s e-commerce sector inquiry where its report published in May found evidence of restrictions that may limit competition in selective distribution systems.  The Commission considers that such agreements may hinder consumers from benefiting from lower prices and greater product choices. The Commission is already planning legislation designed to ensure that consumers seeking to acquire products or services on a cross-border basis are not discriminated against.

Source:  http://europa.eu/rapid/press-release_IP-17-1549_en.htm

Arkema seeks FRAND access in second antitrust complaint against Honeywell

Arkema has launched a complaint to the European Commission against Honeywell in an attempt to gain fair, reasonable and non-discriminatory terms of access to the latter’s patents.  The complaint is the latest development in a series of attempts by Arkema to challenge Honeywell’s allegedly anti-competitive practices in relation to the standardisation of patents for “1234f” an eco-friendly auto air conditioning refrigerant used in the car industry.

The Commission is already investigating Honeywell and Chemours on suspicion that their agreement to produce “1234f” may have limited supplies available to the market and impeded technical development contrary to Article 101 TFEU.

Arkema’s fresh complaint alleges that there are grounds for the Commission to pursue an abuse of dominance investigation.  It believes that the complaint is pressing and maintains that the car industry is moving to worldwide use of 1234f. Arkema says that it wants to participate in the 1234f market with its own production technology and is seeking access to Honeywell’s patents in order to contribute to a competitive market.

The Commission would not be in a position to pursue the abuse of dominance complaint without issuing a further statement of objections as its current one, issued in 2014, covers only the allegedly restrictive agreement.

Irish Supreme Court rules on litigation funding ban

The Supreme Court of Ireland has ruled that the doctrines of champerty and maintenance prevented third party litigation funders from financing litigation.

The ruling concerns a non-competition case where Persona Digital Telephony and Sigma Wireless Networks were suing the Business Minister after they lost a bid in a mobile telephone auction.

The Supreme Court upheld a ruling of the Irish High Court that the funding agreement with Harbour Capital was unlawful.  The Supreme Court president found that the fund had no connection with the claimants other than the funding arrangements.  As such, it was a “champertous agreement” which, in the absence of a statutory exception, was unlawful.

The judgment comes at a time when claimants are considering antitrust litigation in a number of jurisdictions.  It remains to be seen what effect the ruling will have on the attractiveness of Ireland as a venue for such actions. 

It might be said that the ruling does no more than confirm the existing position on funding based on a narrow construction of existing statutory provisions.  In this respect it is noteworthy that the president gave a nod to the need for legislation on the matter noting that such a complex and multi-faceted issue was “more suited to a legislative analysis”.

Persona Digital Telephony Limited & Sigma Wireless Networks Limited v The Minister for Public Enterprise, Ireland and the Attorney General [2017] IESC 27

Commission opens rare abuse of dominance case into excessive pricing by Aspen Pharma

Commission opens rare abuse of dominance case into excessive pricing by Aspen Pharma

The European Commission has opened an investigation into whether Aspen Pharma is charging excessive prices for certain cancer medicines in breach of Article 102 TFEU.

The Commission suspects that Aspen has imposed “very significant” and “unjustified” price increases of up to several hundred per cent for medicines that it acquired after the expiry of patent protection.

The Commission’s investigation will cover the whole of the EEA except Italy.  In 2016 the Italian competition regulator fined Aspen EUR 5.2 million for infringing Article 102 TFEU as a result of unfair pricing and found price increases of up to 1500 per cent for some cancer medicines.

This is the first competition investigation by the Commission into excess pricing in the pharmaceutical sector.  Excessive pricing cases are rare in EU law and the competition authorities cite the mantra that they do not want to act as price regulators.  It may be that by opening this case, the Commission is seeking to achieve a uniform approach at national and EU level to what can be a knotty legal and economic question: the circumstances in which prices may be deemed excessive.

Commission press release. IP/17/1323.

Mediating disputes in regulated sectors

http://kluwermediationblog.com/2017/05/08/from-regulation-to-resolution-mediating-disputes-in-regulated-sectors/