Anti-competitive agreements cases and facts

Question 1

Article 101

Answer 1

Prohibits anti-competitive agreements, decision and practices. Such agreements are void in law

Question 2

R1/2003

Answer 2

Companies can no longer go to competition commission to check whether agreement is anti-competitive

Question 3

Notice on Agreement of Minor Importance (NAOMI)

Answer 3

Legislation for defence of de minimis

Question 4

Comm Recommendation on Micro, Small and Medium Sized Enterprises

Answer 4

So small not affecting market, allowed leeway in terms of anti-competitive rules.

Question 5

Hofner & Else

Answer 5

Undertaking means any economic activity (broad)

Question 6

World Cup 1990 Package Tours

Answer 6

Fifa and Italian FA are undertakings under Art 101

Question 7

Motosykletistiki

Answer 7

Dealt with motor-cross racing, were not commercial company but had important rights, so were undertaking

Question 8

Whether article 101 is engaged is a question of 3 elements;

Answer 8

• Collusion
• Inter-state trade
• Object or effect of prevention, restriction or distortion of competition

Question 9

What are the 3 forms of collusion?

Answer 9

Agreements, decision and concerted practices

Question 10

Comm v ANIC

Answer 10

Wide definition, contracts, oral agreements are all agreements for purposes of article 101

Question 11

Treuhand v Comm

Answer 11

Even gentleman’s agreements covered under article 101. Even though not part of cartel, consultancy to cartel, however still anti-competitive as hiding evidence of cartel.

Question 12

Tepea v Comm

Answer 12

Oral and written agreements

Question 13

Hercules CHemicals v Comm

Answer 13

Gentlemans agreements fall under art 101

Question 14

Bayer v Comm

Answer 14

What if just one party? If genuinely 1 company then won’t be anti competitive, but if one company being anti-competitive and other acquiescing, still anti-competitive

Question 15

Anic Partecipazioni

Answer 15

EC doesnt need to establish whether it is Art 101(1) or Art 101(2) breach

Question 16

Vereniging v Comm

Answer 16

Even organisation which produces non-binding recommendations fall under 101

Question 17

Transocean Marine Paint Association

Answer 17

Recommended to members that territories split up and don’t compete with each other. Court held this was fine as it was a niche product, so most important thing was that the product was available in territories, then competition would be worried about. (rule of reason approach)

Question 18

ANSEAU/NAVEWA

Answer 18

Decision by trade association that goods distributed exclusively under common label is decision under Art 101(1)

Question 19

Dyestuffs

Answer 19

Concerted practices definition; A form of coordination between undertakings which, without having reached the stage where an agreement properly so-called has been concluded, knowingly substitutes cooperation between them for the risks of competition

Question 20

ICI Ltd v Commission

Answer 20

Raised prices based on raw materials, but no actual change in raw materials, just a concerted practice

Question 21

Ahlstrom (Woodpulp Cartel)

Answer 21

Group of companies producing woodpulp. Accused of CP but found not guilty as genuine rise in raw materials and transport costs.

Question 22

STM v Maschinebau

Answer 22

Mere potential to affect inter-MS trade (warned against anti-competitive behaviour in the future)

Question 23

Consten v Grundig

Answer 23

Made radio and TVs. Consten French group of shops. Exclusive distribution agreement between Consten and Grundig. This creates lack of choice and artificially high product, depending on demand. The courts look at the effect on the consumer, if negative effect then may be anti-competitive, if no then may be allowed

Question 24

Pronuptia de Paris

Answer 24

When franchise taken up prohibits setting up of other companies using franchise within a certain geographical distance. However court allowed this as rule of reason means that this product is getting into a new area.

Question 25

Brasserie de Haecht

Answer 25

Network of agreements supplying beer to various pubs etc. All Belgian beers which was anti-competitive as though all in one state (not cross border) the effect of agreement was to prevent competition from foreign beers.

Question 26

ICI (polypropene)

Answer 26

Horizontal distortion of the market - Carved up market by all manufacturers at same level of industry participating in concerted practices

Question 27

United Brands

Answer 27

Vertical distortion of the market - Controlled supply chain through production of bananas. Distorted competition as had too large share of market, and brand dominance

Question 28

STM v Maschienbau

Answer 28

German company Maschinenbau wanted to move into France, STM assisted Maschinenbau as expensive getting into new market. Though looked like an anti-competitive contract, it actually increased competition as it introduced a new product into a market. Distortion as object. Evidence of rule of reason, justified as access to new territory and consumer has share of profit.

Question 29

European Night Services

Answer 29

Requires full analysis of market, product, economic conditions etc to determine whether Art 101(1) has been breached (Different railways working together distorted competition)

Question 30

Brasserie de Haecht

Answer 30

Collective effect of lots of small agreements can affect trade. Must examine the whole market to determine if Art 101(1) has been breached. (Belgian brewery had beer ties, which the effect of was to limit imported beer access to the market, as market had already been carved up – therefore by effect is anti-competitive)

Question 31

Article 101 (a)-(e) list of prima facie anti-competitive agreements

Answer 31

o	Price fixing
o	Limit or control production
o	Sources of supply
o	Dissimilar trading conditions
o	Supplementary obligations

Question 32

What 3 defences are there for an anti-competitive agreement?

Answer 32

• De minimis
• Block exemption
• Rule of reason

Question 33

What is de minimis

Answer 33

No appreciable effect of inter state trade

Question 34

Volk v Vervaecke

Answer 34

Made dishwashers etc, tried to move out of MS into other MS. Had agreement with Vervaecke which terms of contract broke competition law. However had such small share of market that didn’t break competition law. (rule of reason concept)

Question 35

What are the levels set in NAOMI?

Answer 35

 Less than 10% share of market - horizontally not applicable
 Less than 15% share of market - vertically not applicable

Question 36

What are the positive justifications of the rule of reason 101(3)?

Answer 36

Improve production/distribution

Allow consumers a share of the profit

Question 37

What are the negative restrictions on the justifications of the rule of reason 101(3)

Answer 37

No dispensable restrictions

Does not eliminate competition

Question 38

What 2 cases are examples of the rule of reason approach?

Answer 38

STM v Mashinebau - access to new territories
Pronuptia de Paris - Geographical ban on establishing franchise within certain distance -justified as greater choice for consumer

Question 39

What legislation allows block exemptions?

Answer 39

R1/2003

Question 40

What are block exemptions?

Answer 40

categories of companies which are exempt from competition laws. The setting of block exemption limits is based on 101(3) principles of rule of reason

Question 41

Block exemption 330/2010

Answer 41

Vertical agreement with less than 30% share and no hardcore offences then will be exempt from competition law

Question 42

Courage v Crehan

Answer 42

Tied pubs to beer. Bought all alcohol from Courage brewery as tied in, broke agreement as got spirits from other outlets. Courage sued, Crehan said tied pub illegal as contravened EU competition law. EU competition law supersedes UK competition law

Question 43

Manfredini

Answer 43

National laws in MS can be rendered redundant in order to ensure EU competition law is fully effective. Any individual can claim compensation for harm from causal relationship between harm and agreement/practice prohibited under Art 101