Huawei may not be the end of the story

On 11 September  2015 the Antitrust Commissioner Margrethe Vestager announced in a speech at the 19th IBA Conference in Florence that certain companies are potentially circumventing the rules established by the Court of Justice in the recent Huawei v ZTE judgment (see our blog posts here, here and here and here).
 
In that judgment, the Court of Justice held that in certain circumstances a holder of a standard essential patent which has committed to licensing it on fair, reasonable and non-discriminatory (FRAND) terms would be abusing its dominant position if it seeks an injunction against an implementer (typically a manufacturer) which is willing to licence on FRAND terms.  However, some companies are now seeking injunctions not against manufacturers, but against other parties further down the distribution chain (for example telecoms operators selling phones), which are exercising the same patent right. 

Of course, this isn’t a breach of patent law, which countenances the possibility of “infringing acts” at many different levels of the supply chain.  In her Florence speech, however, Vestager made clear that the Commission will consider it an abuse of dominance to impose an injunction on any party exercising the same patent right even if they are not the actual product manufacturer.  

Vestager also suggested a broadening of the debate, referring elliptically to “new questions arising in patent enforcement that have a competition law dimension”.  Which exact aspect of the exercise of a right-holder’s patent she had in mind is not clear, given there have been a number of types of conduct in this area that have caused DG Competition consternation.  Given the Huawei ruling’s endorsement of patentees’ right to seek damages, it is to be presumed that Vestager has claims for injunctive relief primarily in mind.  

Vestager also suggested that, as with copyright law, competition law may not always be the solution and that a re-design of certain patent laws and practice may be required.  Those involved in the negotiations to reach agreement on the UPC will no doubt wish the Commissioner “good luck” with that particular enterprise…

No rest for the Commission

You could be forgiven for thinking that after a busy year DG Competition would take a break over the summer period.  In fact, it continues to focus on the e-commerce sector inquiry which it launched in May (see our previous commentary here and here). 

Over the past few weeks DG Comp has continued to send information requests to numerous stakeholders in the digital market throughout the EU. This includes suppliers, wholesalers, online platforms and online retailers. The currently proposed timetable for the inquiry is as follows:
Earlier this summer the Commission also made a number of other significant moves in the e-commerce sector. First, it opened an investigation into Amazon’s e-book distribution agreements and in particular its ‘most-favoured-nation’ clauses. Second, it approved under the EU Merger Regulation the proposed creation of a joint venture for multi-territorial online music licensing and copyright administration services by three music collecting societies (we will be writing a post on this shortly). Third, it sent a Statement of Objections to MasterCard in relation to the MasterCard’s inter-regional inter-change fees and its rules on cross-border acquiring. It is alleged that these rules prevent arbitrage on interchange fees in different Member States thereby artificially raising costs for consumers using the card.

National authorities also remain active: the German Bundeskartellamt recently concluded its investigation into the selective distribution system of Asics which prohibited dealers from: (i) using online marketplaces such as eBay and Amazon; (ii) supporting price comparison engines; and (iii) using its trade mark on third party sites, even to guide customers to the site of an authorised dealer.  The regulator found that each prohibition was itself a hardcore restriction, and taken together essentially amounted to a de facto ban on internet distribution, causing serious restraints to competition.  The Commission is bound to be following such outcomes with great attention.  

With so much activity in the area it is clear that the Commission, as well as the national authorities, are scrutinising closely the behaviour of those working in the e-commerce sector.  We will be sure to keep readers updated as developments in the area unfold...

Interested in competition law developments in the pharma sector…?

If you are interested in competition law developments in the pharma sector, it’s still not too late to register for a seminar that a couple of us will be giving on Wednesday 30 September.  We will be looking in some detail at the latest patent settlement cases, with a view to trying to find some much-needed legal certainty.  We will also be talking about how the Commission’s conclusions in its Lundbeck and Servier decisions may apply to other areas such as licensing transactions, as well as considering the impact of the competition authorities’ increasingly narrow approach to market definition.

Registration is via Bristows’ main website – here.

A podcast of the seminar, together with the slides, will be available after the event

Pat Treacy and Sophie Lawrance

Flynn, Pfizer and Pharma in the Frame

Whilst the European Commission has shifted its focus to e-commerce and all things digital (see here, here, here and here), the CMA has put the spotlight back on pharma – this time, looking at pricing issues. 

On 6 August 2015, the CMA issued a statement of objections to Pfizer and Flynn Pharma alleging abuse of a dominant position in relation to the supply of the anti-epilepsy drug Epanutin.  The drug started receiving media attention in late 2012, when Pfizer transferred the marketing of it to Flynn Pharma and the price increased from £0.66 per 28 capsules to £15.74.  Epanutin was still to be made by Pfizer, in the same factory, but now had a new name with the active ingredient, ‘Phenytoin Sodium Flynn Hard Capsules’ (although the capsules themselves are still marked ‘Epanutin’).      
                         
Once Pfizer had transferred the marketing rights of Epanutin to Flynn Pharma, Epanutin was no longer a branded drug and outside price regulation.  In theory, generic markets are competitive, so the prices of generics are not directly regulated (although special rules still apply to reimbursement).  Yet three years after Epanutin’s move to the generic market, there’s still no direct competitor and the market has apparently failed to self-regulate.  Add to that the fact Epanutin has a very narrow therapeutic index, and there is said to be a difficulty in switching to close substitutes.  As a result, the Epanutin capsules reportedly still account for 85% of the market – and the CMA is investigating whether Pfizer/Flynn may have abused a possible dominant position.  
     
The abuse under investigation consists in the charging of excessive and unfair prices – which is usually a difficult abuse to establish because of the challenges around establishing what a price “should” be in a free market economy.  

So when does a price become “excessive”?  This is an area with limited case law (but some theory), and generally we look first to bananas for guidance – but the bananas test is far from definitive and there are a number of ways to assess excessive prices (as the Court of Appeal pointed out when it went to the races and considered the right way to assess prices for media deals).  A factor which is usually relevant is the profit margin, but – unlike for predatory (unfairly low) pricing - there’s no bright line test.  And after all, the opportunity to make large profits is what attracts companies into business, a factor which is particularly relevant in industries built on complex inventions yet where the actual costs of production may not be that high.  

The OFT did record an early success in the pharma/excessive pricing arena, but that case focussed on price differentials between hospital and community segments of the market, and was also able to rely on data from certain sufficiently comparable third party products.  The Court of Appeal’s wrestle with excessive pricing produced a decision that shows how difficult it is to estimate economic value – especially in industries where production costs are not a good guide.  Here, with no obvious comparator and only a steep price increase to go on (which Flynn Pharma has stated was necessary in order to maintain the drug on the market), it’s difficult to judge whether the price of Epanutin is excessive and unfair in a competition law sense.  Of course NHS funds are stretched and price increases are often unwelcome, but the CMA will need to be wary of a decision that may limit companies’ abilities to make profits.  

Finding the balance between prohibiting excessive prices and sufficiently rewarding innovation is a tricky area that is usually avoided by regulators.  In the end, we hope any decision manages the complexities in a way that gives those manufacturing generic drugs some clarity on pricing in the UK market and when risks may arise.

Aimee Brookes

Product-hopping prohibited – Actavis’s most recent brush with US antitrust

Interim mandatory relief to compel a company to continue doing something it wanted to stop doing is one of the more draconian remedies in the legal arsenal.  Yet the last few years have seen enough such cases in the competition law context to suggest that it is a real weapon for claimants and a real risk for dominant companies.  Examples in the UK alone include Barclays Bank, which was compelled to keep providing banking services and O2 which was required earlier this month to maintain SIM card services to a downstream user of those services, pending a full trial. 

The pharma sector in the UK has also seen its fair share of cases in which such relief was sought.  The majority of those have been refused (notably in Chemistree v. Abbvie, upheld by the Court of Appeal - see here for our post on the first instance decision), although in one case (Intecare v. Aventis, 2009, not reported) a short-term obligation to continue to supply pending full hearing of the interim relief request was enforced.

In the US, Actavis has also found itself on the receiving end of an obligation to continue to supply, pending a full court investigation of whether it had breached s. 2 of the Sherman Act (the US equivalent of Article 102 TFEU).  Earlier this month, the Court of Appeals for the 2nd Circuit rejected a request to reconsider relief confirmed by the same court in May.  

The issue arose from the decision taken by Actavis, the manufacturer of Alzheimer’s treatment Namenda, to switch patients from an immediate release (IR) version of the product onto a sustained release version (Namenda XR).  Switching patients to the new XR product entailed a change to dosage regimens, from two tablets a day down to one.  According to the case report, Actavis planned to (largely) withdraw the IR product in advance of patent expiry and thus to migrate patients, in the period immediately before patent expiry, into the new XR product – which enjoyed patent protection until 2029. 

This is a type of life cycle management strategy which the competition authorities sometimes refer to as 'product-hopping'.  It is not the first such case – in the EU, one of the abuses identified by the Commission in its AstraZeneca decision (later upheld by the CJEU) involved the withdrawal of a capsule form of a dominant product, in favour of a new tablet formulation.  The facts in this case are somewhat closer to the UK Reckitt Benckiser decision, another abuse of dominance case, than to AstraZeneca.  Unlike in AstraZeneca, there was no regulatory impediment preventing generic Namenda IR products from coming to market. Rather, there was a practical difficulty – once the IR product was withdrawn, there would be minimal prescriptions for the twice-daily product and thus (according to the interim assessment) very little generic substitution.  The court determined, on an interim basis, that there were no substitutes for Namenda IR other than the XR version and that patients were very unlikely to go back to IR once they had been moved onto XR - a practice known as "reverse-commuting".  This might be thought to be an acknowledgement of the real benefits offered by the new product, but the issue was addressed purely as one of practicality (requirement of a new prescription, acclimatising vulnerable patients to the new dosage regimen, etc).   

The court acknowledged that neither the introduction of a new, arguably superior, product nor the withdrawal of an old product is anti-competitive in itself.  Concerns arose because both strategies were carried out in combination, with a “coercive” effect upon customers/prescribers, who had no option other than to switch to the new product.  In the particular context of the pharma sector, and given the impact of Actavis’s IP protection, the Court decided not to allow Actavis to implement its “hard switch”.  Instead, the relief granted means that it has been left to the market to choose whether to favour the improved release profile of the XR version, or to take advantage of the cost-savings generated by the generic products.  The grant of mandatory interim relief is often the end of the story, but perhaps Actavis will decide to take up the fight for its “right to product-hop” at a full trial.

Digital markets, DG Comp’s policy on data / privacy and some crystal-ball gazing

A perhaps under-publicised resource on DG Comp’s website are its periodic Competition Policy Newsletters and Competition Merger Briefs, which discuss notable legal developments (from the Commission’s perspective) over the preceding period.  

I happened across one such without entirely meaning to (only a competition lawyer could say such a thing...) an evening or two ago, which discusses “lessons learned” from last year’s Facebook/WhatsApp merger clearance.  That was obviously an important decision, both in the sense that the Commission took on a merger which fell below the usual “bright line” jurisdictional thresholds, and in which it had to grapple with new business models set in a multi-sided market context, characterised by pervasive network effects.  

While the competitive importance of ‘big data’ was clear from the merger decision itself, the potential significance of such matters as privacy as a parameter of competition were perhaps less clearly enunciated.  The Commission’s Policy Newsletter notes that, while the CJEU has held that personal data issues do not fall to be considered as matters of competition law (thanks to the Asnef-Equifax ruling), issues such as data privacy, as well as online security, may increasingly become a parameter of competition in the digital world.  

Merger analysis, which involves an element of crystal-ball gazing at the best of times, is obviously a particularly challenging area for the competition authorities.  The recent report prepared at the behest of the European Parliament  on ‘Challenges for Competition Policy in a Digital Economy’ raises the bar by speculating as to the dangers posed by “pre-emptive” merger activity in which an incumbent aims to “prevent a (potential) competitor from disrupting [its] business model by acquiring the company”, while also noting the obviously high risks of false positives in any such analysis.  In fact, the EP report concludes that “in digital markets, the traditional step-by-step analytical approach [(1) market definition; (2) analysis of market power; (3) competitive effects] does not work because of strong dynamic feedback effects running from firm behaviour to market structure”.  On the specific question of the impact of data on mergers, the report speculates that amendments to DP law may be in order, to mitigate potential future competition problems.  For example, a consumer right to data portability could be introduced to increase switching between platforms and, potentially “multi-homing” (using multiple platforms).

Such conundrums are not only relevant to merger analysis, but may also play a role in future abuse of dominance cases.  It is to be hoped that the competition authorities will not resort to a more static – and thus unrealistic – market analysis when looking at past or continuing alleged abuses... 

Geo-blocking and the Single Digital Market: a new statement of objections

Last week, the European Commission made concrete moves which it thinks will help it to deliver on its promise to create a Single Digital Market.  On Thursday (23 July) DG Competition sent a statement of objections to six major Hollywood studios and Sky UK claiming that their contracts involve anti-competitive clauses.  What is at issue?  Nothing other than the “geo-blocking” clauses that have already been the subject of sceptical comment in the context of the European Commission’s e-commerce sector inquiry (for more on this see here and here and here and here). 
Geo-blocking, in the words of the European Parliament in its recent study (studies on challenges for competition policy in a digitalised economy), is the practice of “preventing users from accessing content based on location”.  DG Competition alleges that Sky UK and each of six major Hollywood studios (NBC Universal, Paramount Pictures, Sony, 20th Century Fox, Warner Brothers and Disney) bilaterally entered into licensing agreements which obliged Sky UK to restrict consumers from other EU Member States from accessing UK pay TV services either online or via satellite when in other EU Member States.  Film rights (and indeed other rights) are often licensed on an exclusive basis to a single broadcaster in each Member State. The Commission suggests that where licensing terms prevent the exclusive broadcaster being able to respond to unsolicited requests to transmit content to other countries, then this may partition the single market and infringe Article 101(1) – a transfer of the active/passive selling distinction from the realm of goods and services to the world of digital content and national copyright. 
 
The investigation began in 2014 and similar investigations are under way in other EU Member States. They follow the FAPL decision of October 2011 (here). Those familiar with this area will recall that the Murphy case did not hold that it was anti-competitive for the FA Premier League to enter into exclusive licensing arrangements with a broadcaster in each country but it did hold that it was contrary to the competition rules to require a broadcaster to prevent its satellite decoder cards (which enable reception of the licensed program content) from being used outside the licensed territory see here for a discussion on the Advocate General’s opinion in FAPL.
 
However, dealing with this issue does not merely involve contractual arrangements that impose absolute territorial protection - complicating the matters under investigation are national cultural concerns and national copyright rules. The European Parliament recently noted in its studies on challenges for competition policy in a digitalised economy that the ability to access content from anywhere in the EU may also be as a result of geographical restrictions imposed by owners of intellectual property rights. This is why geo-blocking will be assessed not only under the antitrust rules but also by reviewing copyright law across Europe.  The Commission is also keen to ensure wider access to online content within the internal market which will involve a review of the Cable and Satellite Directive. The allegations raised by the Commission against Sky UK and the Hollywood Majors may have a profound impact on the scope of copyright protection (particularly in relation to the doctrine of exhaustion) and may foreshadow significant changes to the copyright landscape once the modernisation of EU copyright law gets underway. 
  
Geo blocking is a major focus of the e-commerce sector inquiry and we will undoubtedly be seeing more investigations on this topic.  As companies start to respond to the chunky Commission information requests now being sent out by the sector enquiry case team, they need to have an eye on key Commission’s concerns on this subject, which may ultimately result in some significant pressure on existing business practices.


CJEU judgment in Huawei v ZTE (Case C-130/13): theory and practice (1: Theory)

Judicial desk-clearing at the Court of Justice before the 2015 summer recess included the handing down of judgment in Huawei v ZTE.  Cases are often described as “eagerly awaited”, but this is genuinely one which has had owners and users of standard essential patents (SEPs) on the edge of their seats.  And there are a lot of SEPs out there, as the judgment observes. 

Having been involved in a number of cases relating to the enforcement of SEPs (on both sides of the fence), we would predict that there will be a considerable mismatch between the theory and practice.  This first post takes a look at the theory.  A second post will follow shortly where we’ll consider some areas where the judgment perhaps doesn’t resolve all the difficulties.

But let’s look first at the theory:

The overall approach of the judgment remains in line with the recommendations of Advocate General Wathelet, who espoused a “middle path” between the interests of owners of standard essential patents and those of SEP users (as discussed in our earlier post on this subject). 

In accordance with this, the Court outlines the applicable legal principles under both patent law and competition law: 

  • On the IP side, the Court briefly notes the relevant provisions of the EPC (Convention on the Grant of European Patents) and the Enforcement Directive (noting in particular the provision for patentees to seek injunctive relief), as well as the ETSI rules.
  • On the competition side, the judgment recalls that the exercise of an IP right will amount to an abuse of a dominant position only in exceptional circumstances – however, the circumstances of this case are rather different from prior case law due to the essentiality of the patents and the fact that irrevocable FRAND undertakings have been given. Such undertakings are said to create “legitimate expectations” on the part of implementers as to the availability of licences.  Accordingly, a refusal by a SEP holder to grant a licence may “in principle” amount to an abuse. 
The judgment then sets out a theory of how FRAND-encumbered SEPs should be litigated in the EEA. It is actually quite limited in scope – since the judgment includes an almost unconditional endorsement of the ability of SEP holders to seek damages/other financial relief, the relevance of the ruling is limited to:

  • SEP holders wishing to avoid abusing a dominant position when they seek injunctive relief against unlicensed implementers; and
  • Implementers of SEPs which wish to avoid having an injunction enforced against them. 
If no injunction is in play, the steps below simply do not apply. (Of course, for implementers, there is likely to be uncertainty about whether an injunction may be sought for a considerable period – they are therefore likely to need to comply with their ‘obligations’ under the CJEU judgment in most cases where SEP licensors seek to engage them in licensing negotiations.  Although perhaps “negotiations” is not the right word for what the CJEU proposes should occur...)

In summary, the steps required by the CJEU ruling are as follows:

Perhaps the main conclusion to be drawn at this stage is that the Court seems to have engineered something of a shift in the obligations applicable.  Even though the implementer is not subject to the special responsibilities which apply to dominant companies, it now has some clear obligations to fulfil if it wishes to avoid being subject to an injunction (provided the SEP owner has fulfilled its prior responsibilities, of course).  This could perhaps be seen as the “price” for unlicensed use of the rights.



CJEU judgment in Huawei v ZTE (Case C-130/13): theory and practice (2: Practice)

This is the second of two related posts looking at the recent CJEU ruling in Huawei v. ZTE.  In the first post, I reviewed the “theory” proposed by the Court – i.e., what it says that SEP owners and implementers need to do to avoid, respectively, committing an abuse and being injuncted.  In this second post, I’m joined by Pat to consider some of the practical implications and open questions.

And now for the practice…:

But while some things are now, perhaps, clearer, for licensors and litigants, the judgment is arguably as important for what is left unsaid as for the points which are now clearly laid out. 

Picking out the most significant:

  • Portfolio licensing: this is the largest of a couple of elephants in the room. It is striking quite how careful the judgment is to avoid referring to anything other than “the SEP” in the singular.  (There is one slip-up/exception [?] in paragraph 69, which suggests that patentees shouldn’t think about trying to prevent licensees from challenging any patents in their portfolios.) 
There are two possible interpretations for this: (1) the referred questions relate only to a single patent, so it is simply unnecessary for the court to consider any other situation; (2) the court positively wishes to require SEP holders to make specific offers on any SEPs which they propose to litigate seeking an injunction, rather than being able to rely on a portfolio offer.  I think the answer is that there is a bit of both going on – the judgment does, after all, refer to the making of a “specific written offer”.   In a similar vein, he English court has recently given a strong steer that a SEP proprietor which does not make a FRAND offer specific to the patents in suit risks a finding that its portfolio offers (which cover numerous untested patents) are “equitably refusable” – see the judgment of Birss J given in Vringo v. ZTE in January 2015, and picked up again this March in Unwired Planet v. Huawei and others [health warning: the latter is a case in which we are involved]. For now, it’s not possible to be categorical as to how this issue will play out in future cases, but prudent licensors and licensees in this field are likely to need to consider very carefully whether they can risk making a portfolio only offer if injunctions are potentially in play. 

  • Delay and commercial practice: here the question is really “how long is a piece of string?”.  For those in the industry, the considerations are: how will a SEP proprietor know it has left long enough to have reduced the risks of seeking injunctive relief to a tolerable level, and, for implementers, how much time can they take to consider their position without running unacceptable risks of an enforceable injunction being sought.  While the CJEU (and the AG beforehand) may be aiming to bring about a reduction in the time taken for negotiations in this industry, it is far from clear that this will in fact be the result.
  • “FRAND offer”: the other elephant in the room: when the CJEU refers to “FRAND offers”, is this intended to mean “an offer of a type which may be adjudicated as to whether it complies with FRAND”, or an offer which is objectively within the FRAND range? If the latter, and if the original offer proves to be higher than FRAND, licensors could find that an abuse has been committed even if they have followed to the letter all the requirements relating to injunctions. My purely personal view is that the answer follows from Article 102: an abuse may be committed if a dominant undertaking seeks to impose excessively high prices or discriminates against certain customers in a way which affects competition on the market.  On this view an offer which ultimately proves to be slightly in excess of an adjudicated FRAND rate, or only imperfectly non-discriminatory would not lead to a finding of an abuse.  A clearly excessive or discriminatory royalty demand may, however, be an abuse - regardless of the position on injunctions.
Of course, this view depends on an analysis of the nature of the abuse which the CJEU is focusing on. This is something on which reasonable people can disagree (or at least have a healthy debate – see the comments on the Chillin’ Competition blog post on this topic): if the focus is on exploitation and on the excessive nature of the offer, then the excessive pricing aspects of 102 may provide the answer. If the focus is on exclusion and leveraging, then the nature of the conduct and the seeking of the injunction against a “willing licensee” may mean that the FRAND offer must objectively be clearly FRAND to avoid liability.  If the concern is akin to the ‘hold up” concern that underpinned the Commission’s Samsung and Motorola decisions, then again, the focus may be on the conduct in combination with an offer that is not objectively FRAND. 

It is a shame that the CJEU, unlike the Advocate General, did not explain particularly clearly the anticompetitive harm it was seeking to address and how it fitted into broader aspects of Article 102. It was not particularly analytical in identifying whether it was most concerned about excessive pricing or the potential coercive power of potential injunctions – just one more area of uncertainty.

Anyone for a few more preliminary rulings?

The unseen risks of e-commerce - a timely AG opinion on technical measures for breaching the competition rules

Those interested in all things e-commerce and competition will want to keep an eye out for the Court of Justice's ruling on a preliminary reference made by Lithuania's Supreme Administrative Court. 

The case (Case C 74/14 - Eturasconcerns an allegation about an anti-competitive concerted practice in the online travel industry. The notable (and novel) point is that the alleged concertation was achieved entirely through the technical workings of an online travel booking system, used by around 20 travel agents (who are now subject to competition investigation). 

The act giving rise to the alleged breach of Article 101 consisted in the making of a technical change which restricted the level of discounts that could be offered by the travel agents to their customers.  There appears to be some very slight evidence that some of the  travel agents had an interest in such a change being made, but the complaint essentially relates to the administrator’s actions in introducing the change, and sending a system notice notifying the travel agents about the change.  It is unclear if the majority of the travel agency users actually saw the system notice, but the fact that they failed to distance themselves from the measure by communicating their disagreement or ceasing to use the service is alleged to amount to a concerted practice. 

The opinion of AG Szpunar (not seen so often in competition cases) was published last week. The opinion  takes the opportunity to engage in a bit of inter-AG dialogue, picking up on AG Wahl's very interesting opinion of a few weeks ago on the role of "cartel administrators" in AC Treuhand (currently only available in French)**.  

Leaving such  benign (or even beneficial) rivalry aside, AG Szpunar concludes that a unilateral communication from an IT system administrator is capable of giving rise to a concerted practice between the administrator and recipients – provide the latter at least give their tacit approval to the measure in question.  According to the AG, such approval can be inferred from the fact that the recipients of the system notice remained silent following receipt of the notice, in particular in circumstances where they were aware that the same information had been communicated to competitors.  While the use of systems messages is not  exactly equivalent to other methods of communication between cartel participants (as the European Commission has urged), a presumption of awareness of the communication may be inferred if a “reasonably attentive and prudent economic operator” would have become aware of the system notice.  Such an operator should have acted in the same way as if it had become privy to illicitly shared information, and should have taken steps to distance itself from the conduct (e.g. by informing the systems administrator).  The ultimate decision on the facts will of course be left to the Lithuanian court on the basis of the full evidence, but the likely outcome (if the AG’s opinion is followed), is that the conduct amounts to an unlawful concerted practice.

In sum, this case is something of a cautionary tale for users of the-commerce systems – who would be well advised to keep an eye out for communications from systems administrators if they wish to avoid being implicated in an unexpected breach of the competition rules.  The view of the Commission (that such communications are entirely equivalent to “normal” business communications) should also be noted – since the Commission will shortly be in receipt of detailed and copious information from its ecommerce questionnaires, it would not be at all surprising to see further cases of this nature emerge in the years to come.

This was of course, only an AG opinion – I, for one, will be keeping a weather eye out for the CJEU ruling.

** It has been a particularly fascinating few weeks for AG opinions in the completion field - and perhaps one where the existence of bit of internecine rivalry among the AGs can be inferred. Important recent AG opinions (aside from this one) include:

  • AG Wahl in AC Treuhand - probably the most radical of this group, suggesting that a “cartel administrator” which is not active on the market does not bear responsibility for the infringement – this is the one, in my opinion, which is the most likely of this group not to be followed;
  • AG Kokott in Post Danmark II - my least favourite - if followed, it represents a 180o change in direction since Post Danmark I, and could well be the nail in the coffin of the supposed economic approach to abuse cases (an “ephemeral trend”, to judge by AG Kokott...);
  • AG Wathelet in Toshiba - an interesting opinion on (inter alia) potential competition.  This one has the potential to be unhelpful for the pending patent settlement cases (companies treated as potential competitors unless the barriers to market entry are “insurmountable”...).
Finally, I note that AG Szpunar has something of a gift for a readable opinion – following a search on a “popular search engine” I found another recent Szpunar opinion in New Media Online, relating to the Audiovisual Media Services Directive (not an instrument with which I currently claim great familiarity), which delights with the following opening paragraph: 

‘Koń jaki jest, każdy widzi’ (“We all know what a horse is”). Thus read one of the definitions contained in the first Polish encyclopaedia, published in the eighteenth century. (2) The problem of defining an audiovisual media service in the internet context, which is the subject of the present case, might seem similar — intuitively everyone is capable of identifying such a service. However, when it comes to describing it in legal language, it is difficult to find terms which are at the same time sufficiently clear-cut and comprehensive.

For those who like their law Denning-esque, AG Szpunar is certainly one to watch!

Sophie Lawrance