Wednesday, February 2, 2011
Posted by D. Daniel Sokol
Romano Subiotto, Farrell Malone, David R. Little, Clémentine de Brosses, and Simina Suciu (Cleary Gottlieb) provide a summary of Recent EU case law developments: Article 102 TFEU.
ABSTRACT: During the period covered, the European Commission and Courts have followed their traditional approach in the application of Article 102 TFEU (abuse of dominant position). For instance, they have continued to apply the ‘margin squeeze theory’ to cases where inputs controlled by dominant firms are essential for downstream competition or must be provided pursuant to regulatory obligations. Some cases may however generate debate. For instance, one judgment reaffirms the appropriateness of a form-based approach, and another raises the difficulty of striking a balance between the interests of IP rightholders and their generic competitors. The increasing use of the commitments procedure, with possible negative consequences for the development of clear precedents and any jurisdictional control, is also to be noted.