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home archive contact -- about us subscribe search facebook twitter google plus subscrib youtube linkedin instagram github -- the clip board -- pharma stock management - nothing extraordinary in limiting parallel trade? 18 july 2018 comments (0) pharmaceutical stock management – the brand-owner practice of limiting quantities sold to levels required for the local market in a bid to limit parallel exports – has been a feature of european markets for at least much of the past two decades. it was the 2004 bayer (adalat) decision of the court of justice, coupled with the continued supply obligations in article 81 of directive 2001/83 ( as amended ) which opened up a route for brand owners to effectively limit exports from lower price member states without risking engaging the prohibition on anti-competitive agreements for limiting parallel trade. that route essentially rested on unilateral conduct by the brand owner – but as such left open the risk of abuse of dominance rules applying. as pharma markets are often narrowly drawn by competition regulators, this remained a significant concern. it was another year before the first case raising the question of how article 102 applied to stock management came before the courts ( syfait , 2005 ). that case was a referral to the cjeu from the greek competition commission – but the request was stymied by a procedural point, and the court declined to respond to the request for a preliminary ruling. it was another few years before the same case came back before the cjeu. this time the cjeu endorsed the benefits to consumers from parallel trade, and clarified that it may be an abuse of a dominant position for a pharmaceutical manufacturer to refuse to meet ‘ordinary orders’ from existing customers ( lelos , 2008 ). surprisingly, it took 10 years before the next development in the saga, when the hellenic competition commission (“hcc”) found that glaxosmithkline (“gsk”) had abused a position of dominance in the market for migraine medicines in greece by refusing to fulfil any orders in their entirety of imigran and by refusing to meet ‘ordinary orders’ from wholesalers. as a result, the hcc fined gsk a total of just over €4 million. in reaching that decision, the hcc clarified that orders from wholesalers which were out of all proportion to a previous order history, could legitimately be refused as being of an ‘extraordinary’ character. assessing whether an order was ‘ordinary’ within the meaning set out in lelos required a review against the annual size of previous orders and supplies per wholesaler, total national consumption per year and the pattern of previous business relations between the pharmaceutical manufacturer and the wholesaler in question. despite its findings on abuse, the hcc indicated that orders of significant quantities of products intended primarily for the parallel export market are likely to qualify as ‘extraordinary’, and rejected other parts of the complaints against gsk on that basis. it seems that stock management issues in general may once again be an area of particular focus for regulators – it is interesting to note that in its case opening report initiating formal antitrust proceedings against aspen pharmacare, the commission cites stock management alongside unfair and excessive prices. whatever the outcome of that case, it is clear that even a dominant firm can legitimately refuse orders that are ‘extraordinary’, but in doing so, the manufacturer must be able to justify this decision by reference to national market requirements and previous business relations with the wholesaler in question. sophie lawrance and stephen smith share coty gets green light for online platform ban 16 july 2018 comments (0) the higher regional court of frankfurt ruled last thursday that coty germany’s ban on distributors selling products over the amazon.de platform is a justifiable restriction of online sales. the full judgment has not yet been released, but the court has published a statement (in german) summarising the decision. this ruling follows the decision of the court of justice of the european union (‘cjeu’) at the end of last year in a preliminary reference arising from the dispute (see here ). the cjeu ruled the restriction of sales through third party platforms such as amazon is not a hardcore restriction of competition, and may be justified where it has the objective of preserving an ‘aura of luxury’ that is linked to the quality of the goods. however, the cjeu stated that it was for the national courts to decide whether such restrictions are justifiable and proportionate, on a case-by-case basis. following the cjeu’s reasoning, the frankfurt court found that the selective distribution system implemented by perfume supplier coty, including the ban on sales over third party platforms such as amazon.de, was compatible with competition law because it was based on objective qualitative criteria applied uniformly and without discrimination, and because it did not go beyond what was necessary to preserve the luxury image of the goods. it also confirmed that the specific clause banning the advertising and selling of coty products via amazon.de was proportionate to the objective of preserving the quality of these luxury products. the frankfurt court therefore concluded that coty’s selective distribution did not infringe eu competition law. the findings of the frankfurt court are not surprising given the strong steer given by the cjeu in the reference proceedings. however, we will be reading the full judgment closely when it’s available, to see if there is any indication that the german courts support the view of the german competition authority, the bundeskartellamt, that the cjeu’s decision should be limited to genuinely prestigious products or whether it can be applied more widely... francion brooks and helena connors share mastercard and visa miffed as the court of appeal considers two-sided markets; scotus itself is two-sided (part 2 – the usa) 13 july 2018 comments (1) following on from yesterday’s blog on the mastercard / visa decision , we’ve also taken a look at how the us is approaching antitrust issues in two-sided markets, with scotus giving its first opinion on these in the amex litigation (originally brought with the doj, but continued by only eleven states following the administration change). amex is a closed loop network, with amex holding relationships with cardholders and merchants. in a 5-4 decision considering anti-steering provisions that prohibited merchants from avoiding fees by discouraging amex use at the point of sale, scotus found no violation of the sherman antitrust act (upholding the u.s. 2nd cir. court of appeals ). scotus was asked to determine whether the parties had met the burdens in a three step rule of reason analysis (plaintiff must prove anticompetitive effects; defendant must show a procompetitive justification; plaintiff must show that efficiencies could have been achieved through less restrictive means). the plaintiffs sought to argue that a market definition wasn’t necessary because they had offered evidence that showed adverse effects on competition. the majority disagreed with this, and noted that the cases relied on by the plaintiffs for this proposition were horizontal restraint cases. here, vertical arrangements were at issue, and given that they’re not always anti-competitive, the market definition was relevant. the majority held that the relevant market included both sides of the transaction, and it had to be shown that both sides of the transaction were harmed by the provision. the court stated that “ a market should be treated as one sided when the impacts of indirect network effects and relative pricing in that market are minor ”, and divided two-sided markets into two categories: two-sided transaction platforms that facilitate a single, simultaneous transaction and are best understood as supplying that transaction as the product (such as those between

URL analysis for bristowsclipboard.com

http://www.bristowsclipboard.com/2015/02/default
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http://www.bristowsclipboard.com/post/coty-gets-green-light-for-online-platform-ban#comment
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publications.parliament.uk
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Whois Information

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Domain Name: BRISTOWSCLIPBOARD.COM
Registry Domain ID: 1848908472_DOMAIN_COM-VRSN
Registrar WHOIS Server: whois.123-reg.co.uk
Registrar URL: http://www.meshdigital.com
Updated Date: 2017-02-24T05:52:17Z
Creation Date: 2014-03-03T12:06:19Z
Registry Expiry Date: 2018-03-03T12:06:19Z
Registrar: 123-Reg Limited
Registrar IANA ID: 1515
Registrar Abuse Contact Email:
Registrar Abuse Contact Phone:
Domain Status: clientDeleteProhibited https://icann.org/epp#clientDeleteProhibited
Domain Status: clientTransferProhibited https://icann.org/epp#clientTransferProhibited
Domain Status: clientUpdateProhibited https://icann.org/epp#clientUpdateProhibited
Name Server: NS.123-REG.CO.UK
Name Server: NS2.123-REG.CO.UK
DNSSEC: unsigned
URL of the ICANN Whois Inaccuracy Complaint Form: https://www.icann.org/wicf/
>>> Last update of whois database: 2017-09-06T19:45:51Z <<<

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  REGISTRAR 123-Reg Limited

SERVERS

  SERVER com.whois-servers.net

  ARGS domain =bristowsclipboard.com

  PORT 43

  TYPE domain

DOMAIN

  NAME bristowsclipboard.com

  CHANGED 2017-02-24

  CREATED 2014-03-03

STATUS
clientDeleteProhibited https://icann.org/epp#clientDeleteProhibited
clientTransferProhibited https://icann.org/epp#clientTransferProhibited
clientUpdateProhibited https://icann.org/epp#clientUpdateProhibited

NSERVER

  NS.123-REG.CO.UK 212.67.202.2

  NS2.123-REG.CO.UK 62.138.132.21

  REGISTERED yes

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