Are Rights Finally Becoming Fundamental?

Patrick Harrison, Kristina Nordlander, Feb 22, 2012

In the landmark 2005 Article 102 TFEU case regarding Losec, AstraZeneca was fined EUR 60 million for conduct that would not have been an infringement of EU competition law had AstraZeneca not been found to be dominant in the relevant market. The European Commission (“Commission”) found that the relevant market on which Losec competed should be defined narrowly to include only the newer class of medicines (“PPIs”) to the exclusion of their older equivalents (H2 Blockers). The Commission’s decision to define the market narrowly dictated that AstraZeneca’s shares were in excess of 50 percent. At such share levels, there exists a presumption of dominance that is extremely difficult to rebut. On appeal, AstraZeneca challenged the findings on market definition and dominance. However, the EU’s General Court limited its review to whether the Commission had committed a manifest error” of assessment in arriving at its findings. Having found no “manifest error, the General Court upheld the Commission’s findings on market definition and dominance and largely upheld the Commission’s multi-million Euro fine.

Is this fair? If a prosecutor comes to a view on market definition, which is a sine qua non for a finding of infringement and the imposition of a high punitive fine, but which is not then subject to full review by an independent court, does that really constitute a fair trial for purposes of the European Convention for the Protection of…

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