Journal of Antitrust Enforcement

Kastrup, Gustavo H

doi: 10.1093/jaenfo/jnae006pmid: N/A

This study aims to establish a connection between human rights violations and unlawful conduct as defined by antitrust laws. To this end, it proposes a systematic teleological interpretation of the Brazilian legal system regarding human rights and competition laws to demonstrate that the Administrative Council for Economic Defence (CADE) has the authority to address human rights violations when enforcing antitrust provisions.

Arai, Koki

doi: 10.1093/jaenfo/jnae027pmid: N/A

There are several ways to collect information on violations of antitrust laws, including ex officio detection, reports from the general public, and the use of leniency systems. There have been many discussions on improvements in the use of leniency systems and refining the ex officio detection method by improving the use of data by methods of analysis. However, improvements in public reporting have not often been considered. In this study, we confirm that 68.8 per cent of the general public provides information on bid-rigging and 49.6 per cent of the general public provides information on cartels, and that the reason for not providing information is the unlikelihood of success, which means a sense of powerlessness against powerful companies, followed by a feeling of lack of responsibility. Therefore, addressing that perception is the key to increasing information from the general public.

Pantelidis, Konstantinos

doi: 10.1093/jaenfo/jnae021pmid: N/A

Divisional patents are derivatives to an already active patent or pending application used to separate part of the parent-patent’s subject-matter and create a new autonomous patent. They are extensively used in the pharmaceuticals sector to protect blockbuster medicines with multiple overarching patent rights, thus creating complex patent portfolios. These strategies have attracted the attention of competition enforcers and judicial bodies as potential abuses of dominant position because they aim to prevent and delay generic market entry for the patent holder to maintain their monopolistic prices. However, scrutinizing these strategies has proven challenging because the current rules are prone to exploitation, there is no unified approach to evaluating them, and the core of the issue is the much-debated interplay between IP and competition law. It will be shown that European case law varies across jurisdictions, with none of the current solutions fully addressing the issues. In the search for a functional, effective system, it is essential to understand the rationale behind patent rights, the unique features of the pharmaceuticals sector, and the arguments for and against the use of competition law to scrutinize patent strategies. On this basis, the article proposes a system which combines competition law enforcement with patent law amendments.

Hosseini, Mina

doi: 10.1093/jaenfo/jnae037pmid: N/A

This article investigates the evolution of the European Union (EU) competition law and policy enforcement in the pharmaceuticals sector, focusing on the impact of the coronavirus disease 2019 (COVID-19) crisis as a turning point. Before COVID-19, EU competition authorities’ goals and priorities focused on pay-for-delay agreements between originators and generic pharmaceutical undertakings. During COVID-19, the European Commission developed soft laws (such as temporary frameworks and comfort letters) enabling undertakings to cooperate to increase access to essential health products and COVID-19 vaccines. In the post-pandemic era, initiatives like the Pharmaceutical Strategy for Europe, the Single Market Emergency Instrument (SMEI), the Health Emergency Response Authority (HERA), the compulsory licensing proposal and the upcoming changes in the pharmaceutical regulations reflect a patient-centred approach and diverse agenda. This article underscores the move towards a more inclusive EU competition law and policy framework in the pharmaceutical sector as part of this evolution.

Marinova, Miroslava

doi: 10.1093/jaenfo/jnae033pmid: N/A

The legal treatment of excessive pricing in the pharmaceutical sector has been a topic of intense debate. This article examines the UK Competition and Market Authority (CMA) approach in the Pfizer/Flynn case and the subsequent appeal. It explores the implications of the Courts’ findings on the CMA’s latest investigations. The article criticizes the UK Courts for imposing unnecessarily high burden on the CMA, which will likely impose additional burdens on future investigators. The analysis also suggests that the cost-plus test conducted by the CMA is a very advanced methodology that can provide different benchmarks not only for assessing the excessiveness but also for assessing the unfairness under the 2-fold United Brands test.

Delvasto, Carlos; Acevedo, Ruben

doi: 10.1093/jaenfo/jnae007pmid: N/A

The present article advances the understanding of antitrust law by providing theoretical considerations and empirical results of people’s attitudes towards price fixing, specifically within the context of fairness in US antitrust laws. Attitudes were obtained through experimental surveys on Amazon Mechanical Turk in the USA between 2018 and 2021. The empirical results suggest that perceptions of fairness influence public attitudes towards price fixing. Moreover, consumer reaction to price fixing will depend on how the consumer perceives the rules of fairness underlying the competitive market mechanism and the point used to set prices (dual entitlement theory). Results indicate that perceived outcomes and consequences of market transactions influence respondents’ judgment of price fixing. For example, public attitudes will be more lenient whenever a cost-increasing event outside firms’ control affects firms’ profit. The main implication of these findings is that antitrust authorities should not take for granted that people view price fixing as unfair and therefore consider how fairness considerations play out in their approach when dealing with price-fixing cases. The suggestion is for antitrust authorities to focus corporate compliance programmes on people’s attitudes to improve compliance to prevent cartel agreements.

Wang, Mi

doi: 10.1093/jaenfo/jnae003pmid: N/A

Open banking develops quickly in China where several large state-owned and private commercial banks have participated in open banking, but the legal foundation is insufficient. The theoretical basis of developing open banking lies in breaking down ‘Data Silos’ to promote the free circulation of data and strengthen competition in the financial data market. Open banking could promote ‘financial data antitrust’, which means reshaping the competitive landscape through promoting the share of monopolized financial data owned by large financial institutions to break their monopoly status in the financial market. It may also bring monopoly risks to financial institutions such as data aggregators and technology platforms. Based on the regulatory and legislative experience of other regions, China should continue the ‘government-guided’ model for developing open banking and pay more attention to protecting financial consumers and increasing their data control rights to better balance privacy protection and financial data sharing. China should set up a rule for ‘financial data right separation’ and formulate antitrust regulations for data aggregators. Based on the special status of Fintech platforms, China should not copy the open banking models of developed countries, but create a ‘two-way sharing’ open banking mechanism to prevent the risk of platform data antitrust.

Gonzalez, Aldo; Weber, Franziska

doi: 10.1093/jaenfo/jnae005pmid: N/A

Competition law enforcement is continuously being fine-tuned to serve two important goals: compensation and deterrence. This is true for the European Union, where the discussions about this balancing exercise are far from final and also for other parts of the world. This article focuses on a currently neglected damage component in litigation and its potential in this regard: the deadweight loss. It emerges for those consumers at the end of the supply chain that would have bought the product at the market price but for the cartel but do not acquire it at the cartelized price (anymore). Importantly, this article will outline how it can simultaneously serve both, the compensation and deterrence goals. It is a challenging damage component. However, a Chilean court in 2019 awarded final consumers compensation for the deadweight loss that others suffered aside from the price mark-up that some paid. The article exemplifies what aspects of Chilean law enabled this judgment and briefly assesses the latest European developments in collective redress in this regard.