The FTC typically prosecutes anti-competitive behavior as violations of Section 5 of the Federal Trade Commission Act, which prohibits “unfair competition practices” and “dishonest or deceptive acts or practices.” To what extent are technology licensing agreements considered anti-competitive? Finnish competition law does not provide specific guidance for the evaluation of technology licensing agreements. The guidelines of the European Commission`s Technology Transfer Block Exemption Regulation (316/2014) and related guidance provide additional information on the assessment of technology licensing agreements. To what extent can joint communications or lobbying actions be anti-competitive? Lobbying actions, negotiations and discussions in the context of the ongoing legislative reform were, in the opinion of the Market Court, part of the lobbying actions of a normal trade association (Market Court, decision No. MAO:781/17, 14. December 2017, confirmed by the Supreme Administrative Court, decision No. KHO:2019:98, 20 August 2019). However, if, in addition to lobbying measures, the parties discuss, agree or adopt anti-competitive measures (e.g. B collective action against a market participant, the possible effects of the legislative reform on the undertaking or the future behaviour of the market in the modified circumstances), these would be considered infringements. The co-promotion and co-marketing agreements have not yet been thoroughly investigated by the Finnish Competition and Consumer Authority (FCCA). However, it is to be expected that the same principles followed by the European Commission in the evaluation of such agreements will be the starting point for the FCCA ANALYSIS. Vertical agreements are generally assessed according to common sense and may raise antitrust issues if they result in the exclusion of competitors from a significant part of the market. For example, if a dominant seller enters into an exclusivity agreement with customers or suppliers representing more than 30 % of the relevant market, it may become more difficult for the seller`s competitors to compete with each other. Loyalty discounts, which condition a customer obtaining discounts on the purchase of most or substantially all of the seller`s volume, can have similar foreclosure effects in certain circumstances and have been challenged in private litigation and by the FTC.
Like the European Commission`s Vertical Block Exemption Regulation (330/2010), the main aspects of vertical agreements that give rise to concerns are provisions on resale prices of products by a distributor and restrictions imposed on a distributor in terms of territory or customers. However, a peculiarity of the Finnish pharmaceutical sector is the comprehensive regulation of the prices of pharmaceutical products. When assessing, for example, restrictions on resale prices by a distributor, account should be taken of the complex legal framework that affects the possibilities of setting prices for products at different levels of distribution. In addition, the FTC challenged co-promotion and co-marketing agreements between trademark and generic manufacturers under patent settlements. In this context, there is concern that a co-promotion or co-marketing agreement could be a way for the brand company to secretly transfer value to the allegedly counterfeit generic drug as an alleged payment in order to delay entry into the generic market. Given the increased transparency imposed by measures such as disclosure of relationships with healthcare professionals, clinical trials, etc., is an anti-competitive exchange of information in the pharmaceutical sector more likely? Certain restrictions in licensing agreements may result in antitrust risks. Exclusivity provisions may be challenged, for example, if they unreasonably exclude competition. Courts assessing the foreclosure effect of such agreements examine the duration and scope of exclusivity, the market share of the parties, the commercial justifications for exclusivity and the availability of less restrictive alternatives. The requirement for the licensee to purchase other products or licences from the licensor as a condition of the licence may also raise antitrust issues in certain circumstances, in particular where the licensor has market power over the binding product.
The FCCA has not issued a decision on patent settlement agreements. However, the guidelines of the European Commission`s Guidelines on Technology Transfer and Cases Examined by the European Commission, as well as the Judgment of the General Court in Lundbeck (T-472/13), are likely to be a starting point for the FCCA`s assessment of the competitive impact of a patent settlement agreement concluded by pharmaceutical companies. Anti-competitive agreements are agreements between competitors aimed at preventing, restricting or distorting competition. Section 34 of the Competition Act prohibits anti-competitive agreements, decisions and practices. Otherwise, anti-competitive conduct is not exempt from antitrust control, since the conduct took place at a meeting of a professional association. Since trade associations bring together competitors, they may offer the opportunity to participate in illegal practices such as the exchange of competitive information or an agreement between members of professional associations to set prices. In addition, when setting standards, such as . B the establishment of minimum safety standards, there is the possibility of anti-competitive behaviour, in particular where members participating in standardisation activities have the possibility of discriminating against their competitors through the standardisation process.
Cf. American Institute of Intradermal Cosmetics v Society of Permanent Cosmetic Professionals, 2013 US District LEXIS 58138, at *22 (CD Cal 13 April 2013) to remove competition). Vertical agreements, such as those between suppliers and customers, are more likely to have legitimate business justifications and fewer anti-competitive effects than horizontal agreements. Therefore, vertical chords are usually judged according to the softer rule of reason. In the pharmaceutical industry, antitrust authorities have subjected agreements that restrict or delay generic competition to a thorough antitrust review. The prohibition of restrictive agreements in the Competition Act is a general provision and may apply to all practices that have as their object or effect the restriction of competition; In particular, competitors should always carefully consider cooperation agreements that contain restrictive conditions or that have a restrictive purpose or effect. Chapters 5, 6 and 7 examine the objectives of competition law. Key questions: Why is the behavior considered harmful? How is it prosecuted – for example, what means are used? What are the incentives and barriers to behaviour management? Where is law enforcement likely – global models? Chapter 5 answers these questions for both types of anti-competitive agreements.
The first type includes horizontal agreements, i.e. agreements between competitors. These are the most prosecuted and punished violations in the world. Where such an agreement affects a market, it necessarily hinders competition, reduces efficiency, harms the well-being of consumers, undermines economic freedom and economic development. All competition laws target them, but they also allow for justifications such as the need for cooperation in the field of research, and competition law differs considerably in that it allows such justifications. Vertical restraints – for example, between a manufacturer and a distributor – have a very different profile. These include, for example, agreements on consumer pricing and market sharing. Economists call for case-based analysis to determine its impact, and often such effects are difficult to prove, so competition laws that focus on economic analysis tend to have limited application. .
