Tagged: article 101 (1) TFEU

ART. 101(1) TFEU: A Bitter Pill for Hoffmann-La Roche

By Martin Herz and Justin Lindeboom

On 23 January 2018, the Court (Grand Chamber) gave a preliminary ruling on five questions asked by the Italian Consiglio di Stato, with regard to an anti-competitive arrangement in Italy, between two distributors of medical products, Hoffmann-La Roche (“HLR”) and the Novartis Group (“Novartis”). HLR, whose name must be familiar in the eyes of competition lawyers, was yet again plagued with an unfavourable ruling. In it, the Court further clarified its case law on one of the foundations of competition law: the market definition. Generally, in antitrust cases, before being able to measure most effects of certain conduct, markets will be defined. Since the United Brands ‘bananas’ case from 1978, this has been standing case law.

Market definitions consist of a two-pronged approach, namely, a product market, and a geographical market definition. Both depend on the characteristics and intended use of the product, and of course, whether there is demand and supply of the products in question to begin with. Subsequently, products that consumers (or producers) find interchangeable to a high extent, will fall within the same market.

An example might clarify this. An element that watches, timepieces, wall clocks, and alarm clocks have in common is that they are all time-keeping instruments. However, they are unlikely to fall within the same product market. For different reasons, people want watches, timepieces aut cetera. Production costs (and thus, prices) might differ highly as well. For instance, the clock of the Big Ben is not comparable to a wrist watch. Hence, different product markets for time-keeping instruments will exist.

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It Takes Two to Tango: Two-Sided Markets and the Appeals in Cartes Bancaires and MasterCard

By Hans Vedder

The Court has recently decided on the appeals in two seminal cases: MasterCard MIF (MasterCard) and Groupement des Cartes Bancaires (CB). Both cases result from Commission decisions that found Article 101 TFEU to have been infringed by the decisions taken within those schemes with regard to fees that form part of the working of these payment systems. To understand both cases it is necessary to first set out the background to the MasterCard and CB systems. After that we will examine the procedure and finally the judgments themselves. This will reveal essentially three interesting issues:

  1. the object-effect dichotomy,
  2. the relation between the exclusion of competitors and the object category, and
  3. the possibility to take into account redeeming features.

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Vigilantes on the market: Can undertakings restrict competition to ‘help out’ public authorities?

In an interesting case decided today the CJEU held that a number of Slovak banks could not exclude a competitor even if that competitor was allegedly operating illegally on the Slovak market. It’s a notable case, as it tells us something about how the CJEU assesses a situation where competitors are not playing by the rules of the game.

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