APPEAL, NON-APPLICATION, JUDICIAL REVIEW ON THE ACTS OF THE PUBLIC ADMINISTRATION FOR ANTITRUST PURPOSES (NOTES TO THE CONSIGLIO DI STATO - ITALIAN SUPREME ADMINISTRATIVE COURT - JUDGMENT, SEC. VI, NO. 693/2014)

Abstract

In the effort of reconcile protection of competition and intellectual property rights, with particular reference to the pharmaceutical sector, the Pfizer case deals with legitimate patent instrumentally exercised for a purpose other than that for which it was granted. What would be a legitimate administrative measure under Italian Patent Law, combined with other conducts, in the context of a complex strategy designed to artificially delay the entry of new generic drugs competitors, is considered an excluding abuse, violating antitrust rules. If the Italian Competition Authority (ICA) explicitly referred to the abuse of regulatory procedure theory applied by the EU Commission in AstraZeneca case and endorsed by ECJ, the Council of State judgment, applying as in the Coop Estense case the broader and disputed category of the “abuse of right”, represents a further development in antitrust enforcement and is expected to bring back as central issue the topic of the judicial review on the exercise of antitrust power and, with it, the recurring fear that the guarantees of defence cannot always be sufficient. The article examines this new frontier of antitrust law, with specific regard to the case of abuse of dominant position by abusing of regulations and administrative measure, showing the different remedies at disposal of the Italian Competition Authority.