Kiran S. Desai

In a bylined article, Antitrust & Competition partners Nathalie Jalabert Doury (Paris), Kiran Desai, Robert Klotz, Jens Peter Schmidt (all Brussels) and Gillian Sproul (London) discuss the French Competition Authority's launch of a sector inquiry in the pharmaceutical sector.

On 25 February 2013, the French Competition Authority announced the launch of a sector inquiry in the pharmaceutical sector. The Authority plans to issue its preliminary findings on or about July 2013 in order to deliver its final report and recommendations before the end of 2013.

The network of European antitrust and competition authorities (“ECN”) published its revised Model Leniency Programme (“Revised MLP”) recently.

Leading global law firm Mayer Brown has advised the UK subsidiary of Gulf Oil Corporation Ltd (GOCL), the India based lubricants division of the international conglomerate the Hinduja Group, on its purchase of US industrial fluids manufacturer Houghton International Inc for $1.045 billion, the largest outbound acquisition by an Indian company this year.

The European Commission’s competition department (DG COMP) has the power to investigate an industry or sector. Recent action by the DG COMP raises the question of whether it is likely to initiate a food sector inquiry. The DG COMP may undertake a sectoral inquiry if it concludes that “rigidity of prices or other circumstances suggest that competition may be restricted or distorted with the common market”

The EU Commissioner for Competition has repeatedly stated that the antitrust process would be used to ensure that once companies hold standard essential patents they must give effective access on fair, reasonable and nondiscriminatory terms. The application of EU competition law to licensing of intellectual property rights that are incorporated into technical standards has been focused to date on the application of Article 102 of the Treaty on the Functioning of the European Union. However, this article will deal with the licensing issue under the EU rules relating to anticompetitive agreements, namely Article 101.

An essential IP right is one which has been included within a standard and without which it would be impossible to implement the standard. The only way to avoid the  violation of this essential IP right is to request a licence from the rights owner.

On February 1 2012 the European Commission adopted its decision prohibiting the $10.2 billion merger between Deutsche Börse and NYSE Euronext. The decision is notable not least because it is rare for the commission to block a merger. Of the 4,857 merger transactions that have been notified under the EU merger control regime since its inception in 1990, only 21 have been blocked.

Cross-border mergers frequently trigger pre-closing antitrust reviews. Such reviews are complex and can be fraught with risk. With more than 90 countries now having obligatory premerger filing requirements, different substantive and procedural regimes can make a multijurisdictional transaction an expensive and time-consuming process. It is common these days, in both developed and emerging market economies, to have merger control laws. Additionally, national competition authorities around the world are moving closer to a ‘‘common competition culture.” Now that doing business often means doing business globally, preparation for multijurisdictional filings should be a routine part of the overall business strategies developed by companies and their advisers. As a result, organizations involved in mergers and acquisitions need to be aware of new developments taking place in the various merger regimes around the world.

The key developments over the last three months are as follows:

The antitrust/competition agencies from the United States and the European Union recently published a revised set of Best Practices on Cooperation in Merger Investigations (the "Best Practices"). The Best Practices address both the filing stage and the investigation stage of merger review and acknowledge that the success of such cooperation is largely in the hands of the parties themselves. The Best Practices provide detailed guidance on how and when firms can seek, and facilitate coordination of, the review of transactions by the US and EU agencies, and clarity on how the US and EU agencies would coordinate their investigation of transactions, including at the stage of designing and implementing remedies.