Tagged: complaints

The EFIM-case: no dominant position of printer manufacturers on ink cartridge aftermarket

Ink in cartridges for printers is often called ‘black gold’, or qualified as the ‘most expensive liquid in the world’. Manufacturers of printers sell their ink cartridges at (relatively) high prices, whereas they offer their printers for (relatively) low prices. The ‘cheap-appliance-expensive-consumable’-business model is used widely: coffee machines and pods, consoles and games, cars and spare-parts, etc. As a consequence of the relatively high prices on the aftermarket, independent suppliers try to enter such a lucrative aftermarket by offering generic products which are compatible with the machinery offered on the up-stream market. Not surprisingly, this leads to conflicts between those independents and manufacturers of appliances,  because of  the intellectual property rights over the machinery and consumables (e.g. generic producers offering coffee pads compatible with Nespresso[1]– and Senseo[2]-coffee machines and contesting the IP-rights in question, or – in the alternative – claiming that the refusal to license the IP-right is an abuse of a dominant position[3]) and associated litigation (e.g. the Toshiba/Katun-case over advertisement of generic consumables which referred to the brand of the machinery).

In the EFIM-case, producers of generic ink cartridges (independent suppliers) – associated in the European Federation of Ink and Ink Cartridge Manufacturers (EFIM) – complained to the Commission, mainly because they were denied access to the intellectual property rights by the four, so-called ‘original equipment manufacturers’ (OEMs) of printers: Hewlett‑Packard, Lexmark, Canon and Epson. Without access to those intellectual property rights, producers of generic ink cartridges argued that they could not effectively compete with the OEMs on the (after)market for ink cartridges. EFIM considered that behaviour to foreclose the market for ink cartridges and therefore an abuse of a dominant position, which is prohibited under Art. 102 TFEU.

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T-119/09: GC backs broad Commission discretion not to pursue antitrust cases in absence of “Community interest”

In its Judgment of 13 September 2012 in case T‑119/09 Protégé International Ltd v European Commission and Pernod Ricard SA, the General Court has backed the Commission’s decision not to pursue a complaint filed by Protégé International Ltd regarding a potential abuse of a dominant position by Pernod Ricard SA in the whisky market, in view of the absence of a sufficient “Community interest” [Decision C (2009) 505 (Case COMP/39414 – International Protégé / Pernod Ricard)].

The GC basically restates the prexisting case law of the CJEU on the Commission’s discretion to pursue or drop cases in view of their “Community interest” and extends it to the post-Regulation 1/2003 enforcement scenario (as expressly mentioned in Recital 18 of that Regulation). Most importantly, the GC expressly shows certain judicial deference towards the Commission’s assessment of the existence (or lack of) “Community interest”, which review will be limited to check that the Commission’s assessment guaranteees that the facts have been accurately stated and that there has been no manifest error or appraisal or misuse of power (on such “marginal review”, see the key contribution by M Jaeger, “Standard of review in Competition Cases Involving Complex Economic Assessments: Towards the Margnialisation of the Marginal Review?” (2011) J of Eur Comp Law & Practice 2(4):295-314].

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