Professor Richard Whish Helsinki 11 October 2018

Transcription

1 Professor Richard Whish Helsinki 11 October 2018

2 OUTLINE OF PRESENTATION VERTICAL AGREEMENTS THE COMMISSION S E-COMMERCE SECTOR INQUIRY RECENT CASES ON VERTICAL AGREEMENTS IN THE EU EXCESSIVE PRICING IS THIS AN ANTITRUST CONCERN? RECENT CASES ON EXCESSIVE PRICING IN THE EU 2

3 THE COMMISSION S SECTOR INQUIRY PRIOR TO THE COMMISSION S SECTOR INQUIRY IT HAD NOT ADOPTED AN INFRINGEMENT DECISION IN AN ARTICLE 101 CASE ON VERTICAL AGREEMENTS SINCE PEUGEOT, 5 OCTOBER 2005 THE RULES ON VERTICAL AGREEMENTS ARE WELL-KNOWN AND RELATIVELY STABLE BLOCK EXEMPTIONS 2790/99, 330/2010 VERTICAL GUIDELINES, 1999,

4 THE COMMISSION S SECTOR INQUIRY HOWEVER THERE HAS BEEN PLENTY OF ENFORCEMENT AT NCA LEVEL SINCE REGULATION 1/2003 ENTERED INTO FORCE IN 2004 IN 2017 THE ECN WAS INFORMED OF 151 INVESTIGATIONS (OF ALL KINDS) 29 EUROPEAN COMMISSION; 122 NCAS; 80 PROCEEDING TO A DECISION 55% ARTICLE 101; 10% ARTICLES 101 AND 102; 35% ARTICLE 102 4

5 THE COMMISSION S SECTOR INQUIRY AND THERE HAVE BEEN SEVERAL IMPORTANT ARTICLE 267 REFERENCES ON VERTICAL AGREEMENTS SINCE 2004, EG CASE C-439/09 PIERRE FABRE, JUDGMENT OF 13 OCTOBER 2011 CASE C-345/14 SIA MAXIMA LATVIJA, JUDGMENT OF 26 NOVEMBER 2015 CASE C-547/16 GASORBA SL, JUDGMENT OF 23 NOVEMBER 2017 CASE C-230/16 COTY GERMANY GMBH V PARFÜMERIE AKZENTE GMBH, JUDGMENT OF 6 DECEMBER

6 THE COMMISSION S SECTOR INQUIRY THE DIGITAL AGE MEANS THAT THE PATTERNS OF DISTRIBUTION AROUND WHICH THE EU COMPETITION RULES DEVELOPED ARE DIFFERENT THE STATISTICS REVEAL THAT HUGE NUMBERS OF CONSUMERS PURCHASE, OR SEARCH, ONLINE AND QUITE APART FROM MANUFACTURERS AND RETAILERS HAVING THEIR OWN WEBSITES, THERE ARE ALSO ONLINE MARKETPLACES AND PRICE COMPARISON TOOLS 6

7 THE COMMISSION S SECTOR INQUIRY THE REPORT CONTAINS A GREAT DEAL OF INFORMATION ABOUT HOW PRODUCTS ARE DISTRIBUTED ONLINE AND ABOUT THE KIND OF RESTRICTIONS THAT ARE TO BE FOUND MANUFACTURERS TEND TO REGARD MATTERS SUCH AS BRAND IMAGE AND THE QUALITY OF PRE- AND POST-SALES SERVICES AS MORE IMPORTANT THAN PRICE COMPETITION RETAILERS ATTACH MORE IMPORTANCE TO PRICE COMPETITION 7

8 THE COMMISSION S SECTOR INQUIRY THE REPORT DESCRIBES THE VARIOUS, AND NUMEROUS, RESTRICTIONS THAT ARE FOUND IN ONLINE COMMERCE THESE INCLUDE CROSS-BORDER RESTRICTIONS RESTRICTIONS ON THE USE OF MARKETPLACES PRICE RESTRICTIONS EXCLUSIVITY RESTRICTIONS PARITY PROVISIONS 8

9 RECENT CASES ON VERTICAL AGREEMENTS CROSS-BORDER RESTRICTIONS ARTICLE 4(B) OF REGULATION 330/2010 AND THE VERTICAL GUIDELINES DISCUSS THIS ISSUE IN RELATION TO ONLINE COMMERCE SEEMS TO HAVE WORKED WELL IN PRACTICE NOTE THE COMMISSION S CURRENT CASES SKY/HOLLYWOOD STUDIOS GEOBLOCKING GUESS, 6 JUNE 2017 NIKE, SANRIO, UNIVERSAL STUDIOS (14 JUNE 2017) 9

10 RECENT CASES ON VERTICAL AGREEMENTS RESTRICTIONS ON THE USE OF MARKETPLACES PIERRE FABRE (2011) BAN ON INTERNET SALES A HARDCORE RESTRICTION UNLESS IT COULD BE OBJECTIVELY JUSTIFIED NOT BLOCK EXEMPTED UNDER REGULATION 330/2010 UNLIKELY TO SATISFY ARTICLE 101(3) ON AN INDIVIDUAL BASIS COTY (2017) ONLINE SALES PERMITTED BY RETAILERS; BAN ON USE OF THIRD PARTY MARKETPLACES PERMITTED. OBERLANSGERICHT GAVE JUDGMENT IN FAVOUR OF COTY 8 JULY

11 RECENT CASES ON VERTICAL AGREEMENTS HOW WIDE IS THE COTY JUDGMENT? LIMITED TO LUXURY GOODS? SEE THE BKA, OCTOBER 2018 COMPETITION RESTRAINTS IN ONLINE SALES AFTER COTY AND ASICS WHAT S NEXT? NOTE ALSO THE COMMISSION S INITIATION OF AN INVESTIGATION INTO AMAZON S DUAL ROLE AS A PLATFORM FOR MERCHANTS AND A SELLER IN ITS OWN RIGHT 11

12 RECENT CASES ON VERTICAL AGREEMENTS RESTRICTIONS ON THE USE OF MARKETPLACES PING EUROPE (UK COMPETITION APPEAL TRIBUNAL, SEPTEMBER 2018) OUTRIGHT BAN ON ONLINE SALE OF GOLF CLUBS RESTRICTIVE OF COMPETITION BY OBJECT; NOT OBJECTIVELY NECESSARY FINE OF 1.45 MILLION REDUCED TO 1.25 MILLION ON APPEAL 12

13 RECENT CASES ON VERTICAL AGREEMENTS PRICE RESTRICTIONS ARTICLE 4(A) OF REGULATION 330/2010 NOTE THE COMMISSION S FOUR DECISIONS OF JULY 2018 ASUS, DENON & MANANTZ, PHILIPS AND PIONEER FINES OF 110 MILLION NB SETTLEMENTS! SEVERAL CASES ON THIS HAVE BEEN BROUGHT BY THE CMA IN THE UK: PRIDE MOBILITY; ROMA; ULTRA FINISHING; ITW LTD; POOLE LIGHTING 13

14 RECENT CASES ON VERTICAL AGREEMENTS PRICE PARITY PROVISIONS: APPLE/E- BOOKS (2012 AND 2013) AN UPSIDE DOWN HUB AND SPOKE CASE PRICE PARALELLISM BETWEEN THE E- PUBLISHERS PRICE AND NON-PRICE PARITY PROVISIONS: AMAZON/E-BOOKS (2017) AN ABUSE OF DOMINANCE CASE WHERE AMAZON IS MAKING IT HARDER FOR OTHER PLATFORMS TO COMPETE WITH IT IN THE MARKET FOR THE E-TAILING OF E-BOOKS; COMMITMENTS TO DROP THE PROVISIONS, MAY

15 RECENT CASES ON VERTICAL AGREEMENTS PRICE PARITY PROVISIONS: PRIVATE MOTOR INSURANCE, UK MARKET INVESTIGATION PROHIBITION OF PROVISION PREVENTING INSURERS FROM MAKING THEIR PRODUCTS AVAILABLE MORE CHEAPLY ON OTHER ONLINE PLATFORMS PRICE PARITY PROVISIONS: HOTEL ONLINE BOOKING!!! 15

16 IS THIS AN ANTITRUST CONCERN? ARTICLE 102(2)(A) GIVES AS AN EXAMPLE OF ABUSE DIRECTLY IMPOSING UNFAIR PURCHASE OR SELLING PRICES COMPARE THIS WITH SECTION 2 OF THE SHERMAN ACT WHICH PROHIBITS MONOPOLIZATION AND ATTEMPTS TO MONOPOLIZE SOME LAWS EG SINGAPORE AND HONG KONG DO NOT SPECIFY UNFAIR PRICES AS AN ABUSE 16

17 IS THIS AN ANTITRUST CONCERN? THERE ARE GOOD REASONS WHY COMPETITION AUTHORITIES DO NOT PURSUE HIGH PRICES CAN THE MARKET AUTO-CORRECT? CAN THE PROBLEM BE CURED IN OTHER WAYS (EG CONDEMN EXCLUSIONARY ABUSES; MARKET STUDIES TO IDENTIFY POOR REGULATION, PUBLIC RESTRICTIONS OF COMPETITION) CAN/SHOULD A COMPETITION AUTHORITY BECOME A PRICE REGULATOR? 17

18 IS THIS AN ANTITRUST CONCERN? REASONS FOR NON-INTERVENTION WHEN IS A PRICE EXCESSIVE? WHO SHOULD DECIDE WHAT A NON-EXCESSIVE PRICE IS? BUT NEVER SAY NEVER! WHAT IF ENTRY IS IMPOSSIBLE? THE MARKET CANNOT CORRECT ITSELF (AKKA)? AND WHAT ABOUT CASES OF REGULATORY FAILURE/GAPS (PFIZER AND FLYNN) POPULISM/HIPSTER ANTITRUST? 18

19 RECENT CASES ON EXCESSIVE PRICING SEE ASPEN, DECISION OF THE ITALIAN COMPETITION AUTHORITY, 2016, UPHELD ON APPEAL TO THE TAR LAZIO, 13 JUNE 2017 AND NOW SEE THE COMMISSION S INVESTIGATION OF ASPEN IN OTHER MS IN THE UK SEE PFIZER AND FLYNN, CMA DECISION OF 2016, CAT JUDGMENT OF

20 RECENT CASES ON EXCESSIVE PRICING THE CAT SAID THAT THE CMA HAD MISAPPLIED THE UNITED BRANDS TEST IS THE PRICE EXCESSIVE WHEN COMPARED WITH COST/ECONOMIC VALUE? IF SO IS THE PRICE UNFAIR IN ITSELF OR WHEN COMPARED TO OTHER PRODUCTS? THE CAT SAID THAT THE CMA HAD MISAPPLIED BOTH LIMBS OF THIS TEST THE CMA IS PURSUING OTHER CASES: CONCORDIA, ACTAVIS 20

21 RECENT CASES ON EXCESSIVE PRICING NOTE ALSO GAZPROM: ARTICLE 9 COMMITMENTS ACCEPTED MAY 2018 IN RELATION BOTH TO EXCESSIVE PRICES AND CONTRACTUAL RESTRICTIONS OF CROSS- BORDER TRADE AKKA: JUDGMENT OF THE COURT OF JUSTICE IN 2017 ON HOW TO DETERMINE WHETHER THE PRICES OF A COPYRIGHT COLLECTING SOCIETY WITH A LEGAL MONOPOLY WERE EXCESSIVE 21

22 RECENT CASES ON EXCESSIVE PRICING THE DUTCH ACM IS INVESTIGATING MEDICINE PRICES PARR INTERVIEW, 5 OCTOBER 2018 A DANISH COURT CONCLUDED THAT A FINDING THAT ELSAM WAS GUILTY OF EXCESSIVE PRICING WAS INCORRECT: 24 MAY 2018 THE AUSTRIAN AUTHORITY IS INVESTIGATING POSSIBLE EXCESSIVE PRICING IN AIRFARES AND NOTE THE BKA S FACEBOOK INVESTIGATION EXCESSIVE PRICING? 22

23 RECENT CASES ON EXCESSIVE PRICING THE FRENCH AUTORITÉ DE LA CONNCURRENCE IMPOSED A FINE OF EUR 0.2 MILLION ON SANICORSE FOR EXCESSIVE PRICING IN CLINICAL WASTE MANAGEMENT, 20 SEPTEMBER 2018 THE DANISH COMPETITION AUTHORITY FOUND CD PHARMA GUILTY OF EXCESSIVE PRICES, 31 JANUARY

24 CONCLUSION THERE ARE SOUND REASONS FOR REFRAINING FROM BRINGING CASES ON EXCESSIVE PRICING BUT NEVER SAY NEVER! THERE ARE NUMEROUS RECENT AND CURRENT CASES 24

25 THANK YOU FOR YOUR ATTENTION! 25