EnJeu | Competition law insight by the Paris team

Rarely the subject of prosecution and conviction by competition authorities, excessive pricing seems to be one of those “buzzwords” that come up in competition law from time to time. The Daraprim scandal in the United States in September 2015 caused a great stir in the pharmaceutical sector, which was further confronted more recently with the record fine imposed by the UK Competition and Market Authority (CMA) in the Pfizer/Flynn Pharma case in December 2016. Investigations on excessive prices keep propagating in the pharmaceutical sector. For instance, the European Commission and the Spanish authority are now investigating the Aspen case, and the French authority has more widely announced a potential sector inquiry into the healthcare sector which might also cover excessive prices. Notwithstanding, as the opinion rendered by Advocate-General Nils Wahl on April 6, 2017 reminded it in a pending case before the Court of Justice, a finding of excessive pricing should require meeting a particularly strict standard of proof.

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Three years after the publication of Directive 2014/104/EU of November 26, 2014 (the Directive) creating a common framework for private actions in competition law in Europe, France has just completed its transposition into domestic law by publishing order 2017-303 of March 9, 2017 (the Order) and decree 2017-305 which entered into force on the same day (the Decree) (collectively, the Reform).

In some respects, this new regime appears to be more ambitious than the Directive and seems to reflect a clear desire of France to favour the use of antitrust private actions within its territory. It remains to be seen whether this new toolbox will be sufficient to remedy the hurdles that victims keep facing in this type of actions.

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Exchanges of information are a complex area of competition law. Analysis of such exchanges, which aims at identifying a risk of tacit coordination between competitors, depends on multiple factors and is difficult to systemize. Among the variety of criteria taken into account for such assessment, the “time factor” plays a decisive role in various respects. First, determining whether the information exchanged is past or current, is key in assessing the degree of risk and the applicable legal framework. Second, market cycles and the frequency of exchanges have varying degrees of impact as to the likelihood that coordination has occurred, as well as with respect to the duration and effects of such coordination. Two recent decisions, one by the General Court (GC) in the powerchips cartel case, and the other by the French competition authority (FCA) in the vehicle rental sector, provide a good illustration of the test followed by the authorities in this respect.

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