Kalpana Tyagi

European Competition and Regulatory Law Review, Volume 6 (2022), Issue 2, Page 173 - 179

Case AT.40394 Aspen, Commission Decision of 10 February 2021 On 10 February 2021, the Commission entered into a settlement decision with Aspen under Article 9 of Regulation 1/2003. The Commission investigated 'excessive pricing' by the South Africa-headquartered Aspen in six off-patent cancer drugs in the European Economic Area (EEA). These drugs had been off-patent for well over 50 years, and there seemed no rational prima facie justification for their unfairly high prices. This case note offers a critical discussion on the Commission’s case and Aspen’s well-planned strategy to systematically and uniformly increase prices across the Member States.

Behrang Kianzad

European Competition and Regulatory Law Review, Volume 6 (2022), Issue 3, Page 207 - 221

Despite being heavily regulated, the pharmaceutical sector in Europe has in recent years noted many enforcement decisions against excessive pharmaceutical pricing as an anti-competitive practice under Article 102(a) TFEU. Although described as a ‘rarity’ in competition law in most parts of the doctrine, numerous excessive pricing cases have emerged in Italy, UK, Denmark, and the Netherlands in recent years, but also on the European Commission level. The European competition authority adopted its first excessive pricing commitment decision against a pharmaceutical undertaking (Aspen) in April 2021. Take into account the manifold points of contention in the literature on excessive pricing, concerning the normative issue of preventing supra-competitive pricing on part of dominant undertakings. Add the tension between competition law and sector regulation;, as well as the practical issue of calculating cost, prices and profits for the purpose of finding out the ‘excess’ and ‘unfairness’, and one can see the Aspen case is of particular importance for future cases. Keywords: excessive pricing; Article 102; pharmaceutical pricing; competition law; pricing of medicines; sector regulation, law and economics

Bruce Wardhaugh

European Competition and Regulatory Law Review, Volume 5 (2021), Issue 2, Page 122 - 131

This article is concerned with regulation of dynamic pricing algorithms under the EU competition regime. We show that the competition rules as presently interpreted fail to inadequately capture the harm to consumer welfare that dynamic pricing algorithms may cause. This creates an enforcement ‘gap’ in a competition regime which purports to protect consumer welfare. We then argue the existing rules need to be slightly reframed, if such algorithmic practices are to be effectively controlled. This reformulation includes regarding coordinated price elevation as a concerted practice which Articles 101 and 102 TFEU can interdict, viewing price elevation in algorithmic markets as a form of tacit collusion and as a breach of dominant undertakings’ special responsibility not to further weaken competition in a market. Our suggestions are consistent with existing Article 101 and 102 TFEU case law and allow for a more effective response to any welfare reducing threat found in algorithmic markets. Keywords: Article 101 TFEU, Article 102 TFEU, algorithms, dynamic pricing, tacit collusion, object/effects, concerted practice

Behrang Kianzad

European Competition and Regulatory Law Review, Volume 5 (2021), Issue 2, Page 172 - 176

Case C-372/19 Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (SABAM) v Weareone.World BVBA and Wecandance NV, Judgment of the Court of Justice of the European Union (Fifth Chamber) of 25 November 2020 The most recent excessive pricing case considered by Court of Justice of European Union (CJEU) revolved around fees imposed by a national royalty collective society (SABAM) on two Belgian festival organizers (Weareone.World BVBA and Wecandance NV). The Belgian national court submitted the case to CJEU for a preliminary ruling on whether the imposition of fees was to be considered an abuse of dominant position, and further, whether the fees levied were to be considered unfair and excessive in light of Article 102(a) Treaty on the Functioning of the European Union.

Yves Botteman, Daniel Barrio

European Competition and Regulatory Law Review, Volume 4 (2020), Issue 1, Page 49 - 53

Case C-177/16 Autortiesību un komunicēšanās konsultāciju aģentūra / Latvijas Autoru apvienība v Konkurences padome, Judgement by the Court of Justice of the European Union of 14 September 2017 On the appropriate methods to determine whether the rates charged by a collecting society which enjoys a legal monopoly are excessive, whether such excess is ‘appreciable’ pursuant to Article 102(a) TFEU and the possible justifications for such excessive rates. Article 102 Treaty on the Functioning of the European Union (TFEU); OJ 2008 L115/47.

Tony Shortall

European Competition and Regulatory Law Review, Volume 3 (2019), Issue 1, Page 17 - 28

With the introduction of the ‘Roam Like At Home’ (RLAH) rules in 2017, retail roaming prices were abolished across the EEA but at the wholesale level the existing system of pricing continued, albeit at lower rates. This paper argues that wholesale prices are unrelated to costs because of a structural problem in the way traffic is traded - in particular the custom of bartering traffic or ‘balancing’ has a major role in distorting this market. Recent evidence from the Body of European Regulators for Electronic Communications and the European Commission on RLAH suggests that the strains caused by high wholesale pricing is leaking through to the retail level and consumers are not getting what was promised. The Commission’s data clearly shows that certain operators are greatly disadvantaged in the wholesale roaming markets and that demand suppression practices such as the avoidance of 4G agreements are not currently tracked. The implications for the development of 5G are both obvious and not good. This article argues that the establishment of a wireless trading platform which only permitted one-way bids (and thereby eliminated traffic balancing) as well as anonymising participation, being transparent of pricing and volumes (in line with exchange rules under MiFID II) would enable prices to move towards marginal cost. Such a pricing scheme would enable RLAH to be sustainable for all operators even where data volumes are very high, such as in a 5G environment. Keywords: Roam Like At Home, RLAH, EU Roaming Regulation, Pricing, Mobile Operators