Neelie Kroes: 2008 Competition Policy challenges...

Speech delivered at the 100th meeting of the OECD Competition Committee. Rather vague, really. Among others, the issue of the more economic approach to art.82 was not touched on. But, perhaps, it is still coming..

ECJ ruling on responsibility for antitrust infringement

Case C-280/06 Autorità Garante della Concorrenza e del Mercato v. Ente tabacchi italiani .
The questions referred for a preliminary ruling by the Consiglio di Stato related to an infringement committed by an entity which then underwent a legal and organisational change (measures taken by the legislature in view of the entity's privatisation). The Court makes clear that:
- " When ... an entity infringes competition rules, it falls, according to the principle of personal responsibility, to that entity to answer for that infringement;
- "As to the circumstances in which an entity that is not responsible for the infringement can nevertheless be penalised for that infringement, it must be held first that this situation arises if the entity that has committed the infringement has ceased to exist, either in law... or economically; otherwise "undertakings could escape penalties by simply changing their identity through restructurings, sales or other legal or organisational change";
- ..."when an entity that has committed an infringement of the competition rules is subject to a legal or organisational change, this change does not necessarily create a new undertaking free of liability for the conduct of its predecessor that infringed the competition rules, when, from an economic point of view, the two are identical";
- "where two entities constitute one economic entity, the fact that the entity that committed the infringement still exists does not as such preclude imposing a penalty on the entity to which its economic activities were transferred.."; In particular, "applying penalties in this way is permissible where those entities have been subject to control by the same person within the group and have therefore, given the close economic and organisational links between them, carried out, in all material respects, the same commercial instructions".

Antitrust/IP: FTC challenges settlements with generic drug manufacturers on Provigil

The suit has been filed in the U.S. District Court for the District of Columbia against Cephalon. According to the Commission, Cephalon, faced with threat to its Provigil monopoly, paid more than $200 million to generic drug companies to abandon their patent challenges and forgo entry into the market until April 2012. As Cephalon's CEO allegedly put it shortly after entering these settlements: "We were able to get six more years of patent protection. That's $4 billion in sales no one expected".
The FTC is clearly taking the issue very seriously, see also here.