The slides of the conference Competition and Regulation in Digital Markets held at the University of Leeds on 9 September are now available here.
You will see some very interesting materials there (not my slides, which are a slightly modified version of my earlier presentations on the same topic: big data) [yawn intermission]. At least
some of the jokes in my intervention (pictured below) were new…
Actually, if it weren’t for the minor issue that that the jokes aren’t really funny I would consider joining Chicago Antitrust Professor Randy Picker in his stand-up comedy events.
By the way, an interesting development regarding the topic of my presentation took place last Friday, when the European Data Protection Supervisor published a new “Opinion on coherent enforcement of fundamental rights in the age of big data“.
The Opinion interestingly acknowledges that “it would be inappropriate for one area of regulation to look to another area to compensate for its own weaknesses. Authorities in each area have limited tools at their disposal, for example competition enforcement can only address abuse of dominance, cartel behaviour and mergers which are not in the consumer interest; abusive conditions of service are not necessarily an antitrust issue”.
At the same time, however, it holds the (now more nuanced) view that “data protection authorities can help shed light on how and to what extent the control of personal data is so crucial for companies in markets. The synergies between the fields of law, which have been discussed intensively in the recent years, could propel closer cooperation between authorities, especially where there is neither guidance nor case law. It is not a question of ‘instrumentalising’ another area of law but rather of synchronising EU policies and enforcement activities, adding value where a supervisory authority lacks expertise or legal competence in analysing“. The EDPS therefore offers “the expertise of independent data authorities in advising on how to assess the significance for consumer welfare in such proposed acquisitions“.
One may or may not agree with the EDPS’s views on this matter (and you know my take), but it him and his team deserve credit for having made a popular issue out of this, thereby reviving some of the old -and most important- debates in EU competition law.
I have just uploaded a new paper on appreciability and de minimis in Article 102 TFEU. See here for the pre-edited version, accessible via SSRN, and here for the edited version, which is coming out in the Journal of European Competition Law & Practice. As usual, I would very much welcome your comments: P.Ibanez-Colomo@lse.ac.uk.
A practice may violate Article 102 TFEU without it being necessary to show that it has a serious or appreciable impact on competition. I do not believe there is anything controversial in this position. It makes little sense to speak of de minimis abuses where a firm is dominant. After all, Völk made an explicit reference to the ‘weak position’ of the parties to the agreement. This fact alone rules out the relevance of the doctrine in instances where a firm’s share is at least above 40% and, typically, 50%.
However, the rejection of the de minimis doctrine in the context of Article 102 TFEU has given rise to controversy. I do not believe it is justified to criticise the Court’s position. More importantly, I do not believe that this line of criticism is about the de minimis doctrine at all.
I have come to realise that there is confusion about the meaning of de minimis in abuse of dominance cases. Some commentators appear to suggest that, because it is not necessary to establish the serious and appreciable nature of an exclusionary effect, every practice is abusive. For instance, a practice that covers just 1% of the market would be contrary to Article 102 TFEU.
In my view, this interpretation of the case law is inaccurate. As I explain in the paper, it is the consequence of the confusion around three separate but related notions, which should not be conflated: (i) appreciability; (ii) likelihood and (iii) effect.
The rejection of the de minimis doctrine does say anything about what an anticompetitive effect is, and does not rule out the need to establish the likelihood of such an effect.
I explain these ideas by reference to Article 101 TFEU case law. In my view, it is reasonable to assume that the meaning of de minimis and appreciability is the same across provisions. What are the lessons to learn from Article 101 TFEU case law?
- The fact that a firm has significant market power does not mean that its practices necessarily have anticompetitive effects. Take a simple example. Two parties to a distribution agreement may have a market share exceeding the 30% threshold set out in the Vertical Block Exemption Regulation. If it is not restrictive by object, this distribution agreement is not necessarily caught by Article 101(1) TFEU. The same is true in the context of Article 102 TFEU. If the practice is not abusive by its very nature, it is not always prohibited. A case-by-case assessment of its impact on competition would be required.
- If a practice is unlikely to have restrictive effects on competition, it is not prohibited. ‘By effect’ conduct is only caught by Article 102 TFEU if it is likely to have an anticompetitive impact. In other words, and as explained by Advocate General Kokott, it is necessary to show that it is ‘more likely than not’ to have such an effect. As a result, a practice that only covers 1% of the market will typically fall outside the scope of Article 102 TFEU. The fact that it is not necessary to show the serious or appreciable nature of an effect is irrelevant in this regard.
- Not every disadvantage to rivals is necessarily an anticompetitive effect. What amounts to an anticompetitive effect is independent from its serious or appreciable nature, and should not be conflated with it. A close reading of the case law suggests that not every disadvantage to rivals necessarily amounts to an exclusionary effect. For instance, the Court has already ruled that selective price cuts and ‘margin squeeze’ practices are not necessarily abusive. In Post Danmark I, it held that pricing below ATC but above AVC is unlikely to have exclusionary effects.
exhausting, never-ending, coma-inducing, comprehensive and certainly influential posts on Post Danmark II (see here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, and here) [the fever has passed and he has moved on to a new obsession, Lundbeck (mercy, please!)😉 rightly emphasized the importance of establishing in any situation a link of causality. Events such as a market share increase may well be attributable to the superior quality of a product but also to non-merit based actions.
When this morning we awoke to a sudden increase in traffic on the blog we first thought that it was attributable to the great interest of our most recent posts. Wrong. The real reason was the traffic diverted to Chillin’Competition by Politico’s Playbook.
Today’s issue of the must-read daily briefing of EU news included a link to our interview with Judge Marc van der Woude (just appointed Vice-President of the General Court; congratulations!) (btw, this in turn has led to quite a few people discovering THE RAID).
And in passing, the Playbook (Ryan Heath) referred to “groovy antitrust blog Chillin’Competition”😎
Most kind! Politico now joins a rare short-list of people who think Pablo is groovy (a list that until today included only a Greek lawyer). My situation is worse, as not even my wife would remotely think that…
P.S. Busy day at work; tomorrow we’ll be back with something more substantial (and groovy).
When asked about what it takes to be a good lawyer (you know my take on that one), the former Chairman of my firm likes to say that lawyers must absolutely read newspapers. I think that he might have had in mind the pre-online era press, but anyway, he had a point. This post is about some things I read in the press over the past couple of days.
During a very long night flight on Saturday night I was able to read something not work related, namely the last issue of The Economist and the book How Children Succeed: Grit, Curiosity, and the Hidden Power of Character. I very much recommend the latter, but for the purposes of this post (and since this blog is not about important matters), I will comment only on the former:
The Economist issue places the spotlight on the role played by a handful of very large corporations in today’s economy, arguing that their rise threatens both competition and the legitimacy of businesses (see here). Not surprisingly, after citing interesting figures on increased levels of concentration in the economy, the piece turns its eyes to antitrust. I have often agreed with the way that newspaper has considered antitrust as a means of ensuring “radical centrist” policies (see here and particularly here) to which equality of opportunity is key, but this time I think they may have got it wrong.
The Economist claims that “prudent policy makers must reinvent antitrust for the digital age” and welcomes efforts to prevent “tech firms from unfairly privileging their own services on platforms they control” praising the Commission’s pursuit of Google (a couple of paragraphs earlier it criticizes the Institution for using State aid to go after Apple).
In my view, what prudent policy makers should do is not meddle with a stable –if somehow inconsisent- set of judge made case law that applies across the spectrum to all sectors. It is a defining feature of antitrust law –for the good- that its adaptability comes precisely from its relative isolation from small politics (as I too often say here, it is a distillation of common sense infused with mainstream economics). Also, and as The Economist knows and often claims, legal certainty does have great value, also in economic terms, so changing the rules in the middle of the game might have a cost.
I share the newspaper’s credo of equality of opportunity, but they may have fallen into the tempting trap of equating that with some vague sense of perhaps-not-so-thought-through neutrality. Such reflexes, which are common, nevertheless comfort us in the decision to devote our upcoming Chilling Competition conference precisely to the role of neutrality in competition law. There are plenty of issues in need of fewer assumptions and greater and finer discussions. Even the press, by the way, is also finding out about the perils of ill-conceived neutrality (re, for instance, Brexit or Trump; see e.g. here).
On top of that, I’m not so convinced that some of our current “policy makers” are ideally-suited to “reinvent antitrust”.
Let me give you an example of why I’m saying this, and one that also features in the news today:
As I skimmed this morning through the Financial Times (admittedlty in search of this story quoting my views on State aid law and Brexit) I came across a piece in which the FT criticizes the Commission’s copyright reform initiatives (“The EU takes a backward step on digital copyright”).
As you know, the Commission plans “forcing” news publishers to demand a fee from news agreggators when they show snippets of content. When that happened in Spain (and the Commission took no action; the national competition authority did say something, though) aggregators closed their sites, with the result that news publishers received much less traffic and even claimed that the shutting down of those aggregators could amount to an abuse of dominance.
The Financial Times – a would-be beneficiary of the initiative- argues today that “the kindest interpretation one can place on these proposals is that the commission has simply misunderstood the marketplace. A more cynical view is that it has caved in to fierce lobbying by a number of powerful European publishers”.
When the Spanish law was enacted, the world’s leading IP scholar Mark Lemley said on Twitter: “Quite possibly the dumbest law enacted anywhere this century”. I’m just not sure that putting an EU seal on it may be good thing. In addition, and regardless of political and IP-issues, this initiative raises interesting antitrust issues too: the world’s leading an obscure antitrust scholar said on Chillin’Competition, this initiative could be regarded as the public creation of a watertight cartel.
In sum, if some of our policy makers don’t respect competition law, I’m not that sure that they are well-suited to “reinvent it”. I,for one, like it as it is.
P.S. It did not feature that much in the news, but new judges were sworn in at the General Court yesterday (and Marc Jaeger has been re-elected President). New judges include Paul Nihoul and Alexander Kornezov, a contemporary of Pablo at the College of Europe (which will force Pablo to re-assess his precociousness, professionally speaking)
I really appreciate that people took the time to comment on my last post on Lundbeck. The point of the blog is after all to encourage discussion. As I write this, five readers have posted their thoughts on the blog. Xavier Boutin did so via our Linkedin group.
This time, I felt I would not to justice to these comments by replying to them one by one, as I usually do. I thought it was a better idea to address the main issues in this format.
The point of my post
A few of the comments discussed potential competition in general and uncertainty in general. These comments were interesting, and I agree with what I read. However, they do not really address the specific issue I raised in my post. Allow me to go back to the initial question:
Can one really say that a generic producer is a potential competitor if it needs to infringe a patent in order to enter a market?
The discussion that followed must be understood as relating to this narrow point of law. Kiko’s comment (thanks!) defines a useful framework. Potential competition presupposes the (i) ability and the (ii) incentive to enter a market. These are the two preconditions for potential competition to exist. Thus, the question can be rephrased as whether a generic producer has the ability and the incentive to enter a market when it would need to infringe a patent. One can think of at least two answers:
- No potential competition: The exclusive right (i.e. the patent regime) precludes market entry and thus the ability of the generic producer to do so. This answer is consistent with E.On Ruhrgas (in which the regulatory framework also precluded market entry) and with the principle according to which EU law does not question the existence of intellectual property rights. The decision in Lundbeck suggests that the Commission (para 632) and the General Court (para 628) have endorsed this approach in the past.
- Potential competition: The exclusive right does not preclude the generic producer’s ability to enter the market because the patent may be declared invalid, or because the patentee may choose not to bring an action against the alleged infringer. As I understand the decision, these are the arguments that the Commission advanced in Lundbeck.
I explained in the post that I am not persuaded by the second answer. Think in particular of the following:
- Substantive reasons: Because EU law does not question the existence of intellectual property rights, patents are presumed to be valid. If the existence of intellectual property rights is not questioned, I fail to see how considerations about the outcome of a potential challenge should play a role in the analysis. For as long as a patent is deemed valid, a generic producer would lack the ability to enter a market if doing so requires the infringement of a patent.
- Certainty and probability: Some passages of the judgment suggest that a generic producer is a potential competitor because it may be a potential competitor. In other words, potential competition is said to exist even though there is uncertainty about one of the preconditions (i.e. the ability to enter the market). It is not clear to me how a 50% or 60% probability of potential competition can be equated with the certainty of potential competition (i.e. a 100% probability). [note: uncertainty in my post refers to potential competition, not to uncertainty about entry, as some have suggested. The difference is important!].
- Economic and legal context: If the probability of potential competition is equated with the certainty of potential competition, a fundamental layer of complexity pertaining to the economic and legal context of the agreements is removed. It seems to me that the legal analysis that follows is inevitably affected. I had this specific issue in mind when I referred to the evaluation of the economic and legal context in the judgment.
‘Yes, but they were process patents’
Xavier suggests that the outcome might have been different if the case had concerned a basic patent, as opposed to a process patent. This is an interesting and plausible reading of Lundbeck. However, it is important to think about its implications. If the outcome of a case depends on the perceived strength of patent protection, competition law be second-guessing the patent system. The competition law system would become a parallel regime for the protection of intellectual property, which would refine and evaluate the merits of protection. Intervention in this sense would entail a fundamental departure from the case law.
‘Is it just that you dislike the outcome?’
I have already explained in the blog (in a post on which Joan also commented!) that I am not interested in the outcome of individual cases. As an academic, it does not matter who ‘wins’ or who ‘loses’ a particular case. What matters to me is the consistency of the system and the evolution of the law. To me, the legal route through which a given outcome is reached is as important, if not more, than the outcome itself. I believe the posts reflects this perspective well.
Someone who has carefully read Lundbeck can credibly claim that the points of law I discussed in the post are not even decisive for the outcome of the case. Arguably, the outcome could have been the same had the discrete points of law I raised been decided differently. I am sure other people will elaborate on this question. But it is not the one in which I am interested.
‘Is it maybe that the judgment does not reflect your understanding of the case law?’
Kiko’s comment is very timely. Alfonso and I have just completed a paper on the notion of restriction of competition. We will upload it soon on ssrn and look forward to your comments. In this paper, we build on some of our previous work.
I would say Lundbeck is in line with my understanding of the case law. As I point out in the post, if one considers that generic producers are potential competitors, it seems inevitable to conclude that the agreements are restrictive by object. A payment to a potential competitor to stay out of the relevant market has no plausible explanation other than the restriction of competition. But please note that, if a generic producer is not a potential competitor, then this explanation becomes implausible (as competition would not have existed even in the absence of the agreements). Interestingly, Lundbeck appears to be somewhere in between.
Perhaps because I actively seek to develop a global understanding of the case law, I may be more inclined to refer to rulings that others may not see as obviously relevant. Coditel II, Erauw-Jacquery or BAT spring to mind immediately when thinking about the scope-of-the-patent test or the restrictions that are inherent in the exploitation of an intellectual property right. More than the opposite, this exchange made me think that I should put together some thoughts and contribute to the ongoing discussions.
Last week, the General Court delivered its judgment in Lundbeck. It is the first ruling on the pay-for-delay saga. As most of you know, the GC dismissed the action for annulment. It confirmed that, in the specific circumstances of the case, the payments to generic producers amounted to a restriction of competition by object. It also confirmed that generic producers were potential competitors on the relevant market.
The judgment is very long. I will certainly not try to summarise it in around 1,500 words. A substantial part of the analysis is devoted to factual questions. I will thus focus on the issues of law that may feature in an appeal and which are more relevant to draw conclusions that go beyond the peculiarities of the case.
Most readers will remember that the Commission claimed in its decision that Lundbeck had paid generic producers to delay the launch of their version of the drug once the basic patent had expired. At the time of the agreements, Lundbeck still held related process patents.
The fundamental question, against this background, is whether the generic producers were ‘potential competitors’ within the meaning of the case law. If these producers are indeed found to be potential competitors in the relevant economic and legal context, it is inevitable to conclude that the agreements are restrictive of competition by object. They would be cartel-like arrangements without a plausible explanation other than the restriction of competition.
My impression, however, is that the General Court may not have fully appreciated the complexity of the economic and legal context. Accordingly, the qualification of the agreements as restrictive by object seems controversial.
Were generic producers potential competitors?
The judgment correctly defines the applicable legal test in this regard. The relevant question is whether there would have been ‘real concrete possibilities’ for generic producers to enter the market (paras 98-99). This question, as many others, must be assessed against the counterfactual. What would have happened in the absence of the agreements?
One can think of various reasons why a firm may not have the ability and/or the incentive to enter a market. For instance, the applicable regulatory framework may preclude actual or potential competition between the parties to the agreement. This is the issue considered by the General Court in E.On Ruhrgas, which is abundantly cited in Lundbeck.
Potential competition and patent protection
Pay-for-delay cases are peculiar in which the pharmaceutical company typically benefits from patent protection. As a result, these cases often involve an instance in which market entry by a generic producer is precluded by an intellectual property right. In this sense, they are similar to E.On Ruhrgas. In the latter, exclusive rights (ie a legal monopoly) also precluded market entry.
Can one really say that a generic producer is a potential competitor if it needs to infringe a patent in order to enter a market?
According to the General Court, even when market entry depends on the use of a patented process, a generic producer that enters the market without the authorisation of the patentee would be a potential competitor.
It is worth summarising the reasoning of the General Court. It notes (para 120) that generic producers in Lundbeck were potential competitors because it was not certain (i) that they would necessarily have infringed the patent(s); (ii) that the patent(s) holder would have brought an action for infringement and (iii) that the patent(s) would have been found to be valid.
As I understand the ruling, the General Court suggests that a generic producer is a potential competitor so long as there is uncertainty around any of the above three points. For instance, the generic producers may not see the prospect of an injunction as realistic, either because they believe they would be successful in the event of a challenge (para 125) or because they do not believe that the patent holder would bring an action in the first place (para 126).
I admit I struggle with this part of the judgment, having read it a few times. I believe it is premised on a contradiction. To use a graphic example: the position taken by the General Court is tantamount to saying that Schrödinger’s cat is alive because it may be alive. A generic producer is a potential competitor, in other words, because it may successfully enter the market.
The General Court equates probability with certainty. As a result, it draws a somewhat simplified picture of the economic and legal context of which the agreements are part. Coming to the analogy used above, it is a bit like applying the logic of classical physics to quantum phenomena. Inevitably, this simplification leads to errors in the analysis. I can think of two main inconsistencies:
- Presumption of validity: The General Court accepts that patents are presumed valid. On the other hand, it emphasises that they may be declared invalid at a subsequent stage (para 122). These two statements cannot be reconciled. I struggle to see why the latter should play a role in the analysis. EU law does not dispute the existence of intellectual property rights. As a result, the assessment of a restriction should be based on the assumption that the patent is valid.
- Temporal aspects: The General Court seems to conflate ex ante and ex post considerations. It suggests that the generic producer is a potential competitor because it may appear, ex post, that it was able to enter the market without infringing the patent. These considerations seem to ignore that the very point of a genuine pay-for-delay agreement is to deal with ex ante uncertainty. By the same token, the nature of an agreement of this kind must be evaluated in an economic and legal context of uncertainty, not in light with an ex post reality that may or may not be manifested at a subsequent stage.
The Lundbeck judgment against the applicable case law
I have already pointed out that pay-for-delay takes place in a very peculiar economic and legal context. Traditionally, the Court of Justice has addressed similar issues in a way that differs significantly from the approach taken by the General Court in Lundbeck.
As the case law stands, an agreement is not restrictive of competition by object if it remains within the substantive scope of the intellectual property right. Think of a few examples, which I analyse in detail in this article of mine:
- Generally, an export prohibition is restrictive by object. This is not the case, however, where it remains within the substantive scope of the relevant intellectual property right (Erauw-Jacquery). Interestingly, the Commission submission in Erauw-Jacquery made exactly this point.
- Similarly, an agreement providing for absolute territorial protection is not restrictive by object when the licence does not go beyond the scope of the relevant intellectual property right – right of communication to the public (Coditel II).
- In the context of technology transfer agreements, an open exclusive licence, which remains within the substantive scope of the intellectual property right, is not restrictive by object (Nungesser).
I have to confess I do not understand why these cases are not discussed at length in the judgment. The most relevant of these precedents is perhaps BAT v Commission. The case concerned a trade mark delimitation agreement. These agreements are used to address the risk of confusion. In many ways, the underlying issues are the same as those found in pay-for-delay agreements.
In BAT v Commission, the Court of Justice held that such delimitation agreements cannot be compared with a market sharing cartel. Thus, they are not restrictive by object. They would only infringe Article 101(1) TFEU by their very nature when they fall outside the substantive scope of the trade mark. This is precisely what happened in BAT v Commission. The Court found that the agreement was restrictive by object because it gave BAT protection that it would not have enjoyed by virtue of the trade mark. In other words, it went beyond the substantive scope of the intellectual property right.
Another major ruling is Ideal Standard. In that case, the Court held that the assignment of a trade mark is not necessarily restrictive by object. It is also a judgment that shows that there is no potential competition where an intellectual property right can be invoked to prevent market entry.
What I would like to see in an appeal
As I was drafting this post, I was thinking that it would be great if legal academics were given the chance to challenge General Court judgments to clarify certain points of law. These are the issues of principle that I would love to see addressed in an appeal:
- Confirmation of the existence/exercise dichotomy: It would be important if the Court confirmed the long-standing principle according to which EU law does not question of the existence of an intellectual property right. In the same vein, considerations about the probability of a successful challenge should not play a role in the analysis.
- Article 101 TFEU and scope of intellectual property protection: Lundbeck departs from the principle whereby an agreement is not restrictive by object where it remains within the substantive scope of an intellectual property right. This principle, which explains the case law discussed above, is based on a venerable legal doctrine: qui peut le plus, peut le moins. If the holder of an intellectual property right can bring an action against a third party, it should by definition be able to settle with it.
- The notion of potential competition: The relevant precedents (Coditel II, Ideal Standard, BAT v Commission) suggest that potential competition does not exist where market entry depends on the infringement of an intellectual property right. The fact that the right in question may be declared invalid at a subsequent stage is not a relevant consideration under this case law.
- The analysis of the counterfactual: The Court of Justice has long taken the view that the analysis of the nature of the agreement and of the relevant economic and legal context must consider the counterfactual. In line with this case law, the General Court evaluates the counterfactual at various stages. Strangely enough, the General Court also denies doing what it does. It suggests in para 473 that the analysis of the counterfactual is only relevant for the analysis of the effects of an agreement. The Court of Justice should be given the chance to address this misunderstanding and clarify – in line with its long-standing case law – that it is impossible to determine whether an agreement restricts competition by object without considering the counterfactual.
From this year onwards the Brussels School of Competition’s programme in competition law will be jointly organised with the University of Liège (ULg) and Saint-Louis University (USL-B). Students who pass their exams and dissertation will receive an ‘Interuniversity Certificate in Competition Law’ (for more info, click here).
Vey importantly, students will also get to do my simulation of case AT. 98765 Intergalactic droids ;)
On top of the annual programme, the BSC also organizes some of the best conferences in Brussels (second only to the upcoming Chillin’Competition conference…). The next one (on Wednesday 14 September) is about the implications of Brexit for competition law, and the line-up of speakers is remarkable: Richard Whish, Trevor Soames, Robert O’Donoghue, Sir Nicholas Forwood and Jacques Steenberger.
For more info click here: What does Brexit mean for EU Competition Law?