European and Swedish Antitrust News (September 21, 2020)

Photo: GSK

The Swedish Competition Authority has decided to not investigate GSK for exclusive supply agreements of its vaccine Shingrix, which some vaccination clinics in Sweden had filed a complaint over. In other news, the SCA has ended its investigation against retailers of professional hair care products. The EU Commission has published an evaluation of the VBER and Commissioner Vestager highlighted ongoing work on green and digital transformation, while the Confederation of Swedish Enterprises notes that there is considerable legal uncertainty ahead of the new EU competition tool.

SCA will not investigate GlaxoSmithKline for exclusive vaccine supply. According to two complainants, GlaxoSmithKline, through its wholesaler Oriola, has entered into exclusive agreements for its new vaccine Shingrix against shingles with the two dominant providers of vaccination in Sweden, VaccinDirekt and SveaVaccin. The complaining clinics state that there’s no comparable product to Shingrix and that the conduct severely harms the Swedish market for vaccination. However the Swedish Competition Agency have chosen not to prioritize an investigation.

SCA end investigation of hair care retailers. In October 2019 the Swedish Competition Authority conducted dawn raids against three retailers of professional hair care products (Lyko, Baldacci and HeadBrands) on suspicion that up to 8 companies had tried to prevent the entry of competitor Geselle. After dropping the case against Lyko in February, the SCA has now also ended the investigation of the other companies.

Commission finds the VBER to be useful but in need of revisions. The EU Commission has published a document evaluating the Vertical Block Exemption Regulation. The VBER, together with the Vertical Guidelines, is overall a useful instrument that greatly facilitate self-assessment, but several issues have been identified, particularly in regard to online sales and online platforms. The evaluation furthermore concludes that lack of clarity in some provisions of the common framework lead national competition authorities and courts to make diverging interpretations of the rules.

EU Commission focus on green and digital transformation. EU Commissioner Vestager held a speak on ‘Competition Day’ where she said the Commission is reviewing rules on vertical agreements to be fit for distribution in the digital age as well as horizontal rules on for example data sharing. Furthermore, she highlighted how effective proportional state aid handed out through competitive tenders have been successful in supporting a green transition, and she pointed out that the Commission is working on legislative action against foreign subsidies of foreign companies operating in the EU.

Legal uncertainty ahead of new EU competition tool. The Confederation of Swedish Enterprises has published a report on the EU Commission’s proposal for an ex-ante regulation of digital platforms and a possible new competition tool to deal with structural competition problems, written by Per Karlsson. He finds it strange that the proposal doesn’t include changes to the merger control guidelines and notes that the structural interventions proposed are considerable and will lead to legal uncertainty for companies.

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