Antitrust & Competition Policy Blog

Editor: D. Daniel Sokol
University of Florida
Levin College of Law

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Wednesday, June 20, 2012

Tough Enforcement of Unilateral Conduct at the National Level: Italian Antitrust Authority Sanctions Bayer and Pfizer for Abuse of Dominant Position (aka AstraZeneca Ruling and Essential Facility Doctrine in Italian Sauce)

Posted by D. Daniel Sokol

Gianni De Stefano (Latham) describes Tough Enforcement of Unilateral Conduct at the National Level: Italian Antitrust Authority Sanctions Bayer and Pfizer for Abuse of Dominant Position (aka AstraZeneca Ruling and Essential Facility Doctrine in Italian Sauce).

ABSTRACT: In the Bayer and Pfizer decisions of the Italian Antitrust Authority (IAA), the application of the legal standard to find an abuse seemed to be tougher than the standards applicable at the EU level. The IAA's theory on misuse of regulatory procedures seems to imply that reliance on legitimate patent instruments or proprietary information can constitute an abuse in itself. The IAA's essential facility doctrine seems to ignore the ‘new product’ requirement under settled EU case law. While in the majority of its earlier decisions on abuse of dominance, the IAA had accepted commitments proposed by the concerned companies, in the Bayer and Pfizer decisions the IAA found an infringement and imposed sanctions; it remains to be seen whether this new course will continue under the new Chairman of the IAA.

http://lawprofessors.typepad.com/antitrustprof_blog/2012/06/tough-enforcement-of-unilateral-conduct-at-the-national-level-italian-antitrust-authority-sanctions-.html

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