This article was first published in Comp Law Blog, January 2016
1. All things digital – There is no doubt that the Commission will continue to focus on digital markets (and the drive to the digital single market) during next year. The preliminary report following the e-commerce sector inquiry is due to be published towards the middle part of the year and is likely to deal with geo-blocking and contractual restrictions which divide online markets along national borders. The report may well spark further enforcement action in the area. At the very least we can expect progress in the Commission’s investigation into territorial restrictions in licensing agreements between six major Hollywood studios and Sky UK – a statement of objections was sent earlier this year and the parties have four months to respond.
2. Guidance on ‘pay-for-delay’ – The General Court’s judgment on the Lundbeck appeal should provide some guidance on the competition analysis of ‘pay-for-delay’ agreements. These are patent infringement settlements which involve a patent holder making a value transfer to an alleged infringer in exchange for ‘delayed’ market entry. The appeal against the Commission’s decision to impose fines totalling €146 million on Lundbeck and certain generic companies covers a number of grounds including, crucially, whether such agreements can be anti-competitive ‘by object’. We may also receive the General Court’s judgment on the Servier appeal, covering some similar issues, towards the end of next year although that may be a tad optimistic.
3. Rise in damages litigation – By the end of 2016 all Member States will have implemented into national law the EU Damages Directive. This aims to harmonise across member states some aspects of how those damaged by competition law infringements antitrust cases may obtain compensation. The key changes in many jurisdictions will be an increase in limitation period (now a minimum of five years) and wider disclosure rules (now by category of document and against third parties). The new disclosure rules are likely to result in significant changes to antitrust litigation in some jurisdictions which currently have a very limited regime. With all of these changes in the pipeline, we can expect to see a rise in damages follow-on actions across Europe.