Antitrust Matters – September 2021

Editorial

Dear Reader,

In the Northern Hemisphere, the world is literally on fire in many places this summer. At the same time, there are major floods in some locations due to excessive rainfall. Meanwhile, the latest IPPC synthesis report is landing on the table with, in fact, old news: to prevent (much) worse, we have to reach zero (net) emissions by 2050. Incredibly fast. How are we going to do that? With its ‘2050 Roadmap’, the European Commission has already kicked off the discussion about this question within the EU. Can competition law also contribute? Hopefully it can. See the article by Chloe Cumber and Alexandra Kamerling (London) with a short update on competition and sustainability. A year ago, the Dutch competition & consumer authority ACM kicked off with its sustainability guidelines. Hopefully the European Commission and other antitrust authorities will soon score with clear guidance for the entire EU and elsewhere.

In a world in which many companies are becoming larger and more and more markets are becoming (tight) oligopolies, the importance of the prohibition on abuse of a dominant position is rapidly increasing. In this new issue of Antitrust Matters, two contributions deal with economic dominance. Nate Bush (Singapore) discusses the application of the essential facilities doctrine in China to patents. This follows a recent court decision that a license refusal by a patent holder constitutes abuse of a dominant position because the patents concerned are essential facilities.

The contribution of Darach Connolly (Dublin), Richard Jenkinson (London), Daniel Wojtczak (Brussels) and Alina Lacatus (Bucharest) deals with the well-known Aspen case on (unfair/excessive) pricing in the pharmaceutical industry and how commitments can prevent fines and provide for compensation.

The fourth and last contribution of this issue is by Ilan Sherr (London) and discusses the increasing risk of cartel infringements in a world full of technology and data and the logical solution to this: the use of artificial intelligence in the early detection or prevention of cartels. Ilan explains that DLA Piper, in cooperation with Reveal, has developed the cartel detection tool Aiscension. If you have any questions about this, please get in touch.

Léon Korsten, on behalf of DLA Piper’s Antitrust community