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Focus Antitrust - 13 November 2013

In the News

Court of Appeal dismisses appeal by Chemistree Homecare Limited in alleged abuse of dominance case

The Court of Appeal has dismissed an appeal by Chemistree Homecare Limited against the High Court's refusal to grant it an interim injunction against Abbvie Ltd in a case concerning an alleged refusal to supply a patented medical product. The Court of Appeal concluded that the High Court was correct in holding that there was no real prospect of Chemistree establishing that the defendant had a dominant market position, on the basis that there was insufficient evidence to show that the relevant product market comprised solely the defendant's product. The High Court was also correct in considering that the relevant customer for the purpose of assessing demand side substitution was the end-user (patient), and no the pharmacist. 

European Commission opens Phase II merger investigation into Hutchison 3G UK’s acquisition of Telefonica Ireland 

The European Commission has initiated an in-depth merger investigation into Hutchison 3G UK's acquisition of Telefónica Ireland. Since both parties provide mobile telephony services in Ireland, the merger will reduce the number of mobile network operators active in Ireland from four to three, leading to concerns that competition in the markets for retail mobile telephony and for wholesale access and call origination in Ireland may be reduced. 


Articles 101 and 102
  • Details of appeals by Ranbaxy Laboratories and Ranbaxy (UK), Generics (UK), Merck and Xellia Pharmaceuticals and Zoetis Products and H. Lundbeck and Lundbeck against the European Commission's decision fining them for entering into "pay for delay" agreements have been published in the Official Journal. The appeals allege that the Commission has erred both in law and in fact, with particular regard to its assessment of the generic companies as potential competitors of Lundbeck and its finding of a restriction of competition by object. 
  • Details of an appeal by SolarWorld e.a. against a Commission decision accepting a price undertaking, offered in connection with anti-dumping proceedings against the import of crystalline silicon photovoltaic modules and components from China, have been published in the Official Journal. SolarWorld alleges that the Commission’s decision infringed Article 101(1) TFEU since it accepts and reinforces a horizontal price-fixing arrangement.


UK courts
  • The Court of Appeal has delivered its judgment on an appeal against a High Court ruling which rejected applications to strike out claims based on conspiracy to use unlawful means in a follow-on damages action (based on a European Commission finding of a cartel) brought under section 47A of the Competition Act 1998. Whilst the Court of Appeal agreed that a conspiracy claim may be brought under section 47A if the Commission's infringement findings support it, in this case, the infringement findings did not establish the necessary intent to injure required for a conspiracy claim.


  • The OFT has accepted initial hold separate undertakings from European Metal Recycling Limited in respect of its completed acquisition of five sites and certain assets of SITA Metal Recycling Limited. 

For more information please contact Paul Stone, Partner

T: +44 (0)20 7203 5110