European and Swedish Antitrust News (December 14, 2020)

Generic Modafinil. Photo: Īriss Sviklis

The EU Commission as fined Teva and Cephalon for an agreement to delay a generic drug. Cephalon has since been acquired by Teva in 2011, but long before that Teva delayed a generic version of Cephalon’s bestselling drug Modafinil for which European patents expired in 2005. In other news, the Court of Justice has ruled that Star Taxi App provides an information society service. The EU Commission has approved the SRF-Covage acquisition, has published a report on the implementation of the Damages Directive and has notified Sweden that the Transport Agency’s definition of “closest suitable railway station” is not in line with an EU Directive.

EU Commission fines Teva and Cephalon €60.5 for delaying generic drug. In 2011, generic drug manufacturer Teva acquired biopharma company Cephalon, but long before that the companies agreed that Teva would delay introducing a generic version of Cephalon’s bestselling drug Modafinil for which European patents expired in 2005. The agreement eliminated Teva as a competitor and allowed Cephalon to continue charging high prices even if the main Modafinil patent had long expired, and the EU Commission believes the agreement was illegal.

EU Commission approves Covage acquisition subject to conditions. SFR FTTH, a company jointly controlled by Altice, Allianz and Omers, will acquire Covage, a leading independent provider of wholesale access to fibre capacity in low population density areas in France. Covage directly competes with SFR in the wholesale market, but the acquisition also raises vertical concerns as SFR could shut out retail competitors buying access from Covage. However, SFR have committed to divest most of Covage’s wholesale network to a suitable buyer and the Commission has therefore cleared the merger subject to the commitments.

EU Commission reports on implementation of Damages Directive. An initial evaluation report notes that all Member States had implemented the Directive by 2018, and that it appears the number of damages actions before national courts has significantly increased and damages actions have become much more widespread in the EU since. The 2014 Antitrust Damages Directive removes practical obstacles to compensation for all victims of infringements of EU antitrust law and fine-tunes the interplay between private damages actions and public enforcement of the EU rules.

Court of Justice rules that Star Taxi App is an information society service. A Romanian court had asked the Court of Justice to clarify the definition of the services provided by Star Taxi App SRL, and the court has now judged that a service that puts taxi passengers directly in touch with taxi drivers by means of an electronic application constitutes an information society service where it does not form an integral part of an overall service the principal component of which is the provision of transport.

EU Commission notifies Sweden on “closest suitable railway station” definition. Swedish law permits foreign haulers to perform the first or final leg of a combined freight transport without being subject to cabotage rules, but the implementation depends on the definition of “closest suitable railway station”. During summer, a Swedish Administrative court ruled against an illegal cabotage claim by the Swedish Transport Agency, but after the Transport Agency appealed that judgement to the Court of Appeal, the EU Commission has now formally notified Sweden that the definition applied by the Swedish Transport Agency is not in line with the EU Directive.

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