On 5 July 2011, the Italian Competition Authority imposed fines
of €5.1 million on a multinational crop protection company
for having abused its dominant position on the market for
fosetyl-based systemic fungicides in breach of Article 102 of the
Treaty on the Functioning of the European Union. In addition,
the Authority issued an injunction restraining the company from
such conduct in the future.
The Authority considered that the multinational was able to
increase its prices for finished products on the downstream market
while increasing the volume of its own sales, showing a high degree
of pricing policy independence.
In making its decision, the Authority also took into account the
fact that, in addition to its high market share, the multinational
was the only vertically integrated manufacturer with significant
financial capability and it owned certain research data required
for the commercialisation of fosetyl-based products.
According to the Authority, these data are vital for accessing the
market, given that they are indispensable for competitors seeking
to renew marketing authorisations, because the current legislation
restricts the repetition of tests on vertebrate animals. The
Authority noted that certain competitors that had joined a task
force for the purpose of negotiating access to the
multinational's data were disqualified from renewal of their
marketing authorisations and had to leave the market. Refusal
by the multinational to grant access to the data was therefore
found to be abusive.
The Authority reviewed a number of the multinational's
internal communications that praised the results obtained in the
fosetyl-based business in Italy, thanks to the strategy adopted by
the company. According to the Authority, these communications
proved that the company was aware of the anti-competitive character
of their conduct.
In the Authority's view, the company's conduct
constituted a serious infringement and therefore deserved a very
The case highlights the dangers faced by a dominant market
player that owns intellectual property rights or data that are
essential for other companies to compete. The case also
illustrates the importance of the language used by businesses in
their internal communications, given that internal communications
are often used by the Authority when reaching a decision on
Refusals to licence or grant access to market-essential data can
only be made if there are objective grounds for doing so.
This is a difficult issue on which dominant companies should seek
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In this section, we give a factual overview of a significant case development at EU level, and then provide a more detailed analysis of the important substantive and procedural developments addressed in this case.
Sayenko Kharenko's antitrust team has provided legal assistance in obtaining merger clearance with the Antimonopoly Committee of Ukraine (the "AMC") for the EUR 22.8 billion acquisition of Sanofi's animal health (AH) business ("Merial") by Boehringer Ingelheim through an asset swap in exchange for Boehringer Ingelheim's consumer healthcare (CHC) business.
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