Competition (Articles 101 and 102 TFEU) Flashcards
‘Agreements’ include informal agreements.
Quinine Cartel
‘Agreements’ include both horizontal and vertical agreements.
Consten and Grundig
Decisions by associations of undertakings/trade associations fall within the scope of Art 101.
IAZ
Regulatory rules promulgated by professional bodies fall within the scope of Art 101 unless they are reasonable.
Wouters
What is the definition of a concerted practice?
Concerted practices fall short of even informal agreements but involve businesses knowingly substituting practical cooperation between them for risks of competition (Dyestuffs).
Presumptions of concerted practice arise in what two situations?
(a) Where there is contact between parties and subsequent similar practice; (b) parallel conduct (Dyestuffs; Woodpulp).
Which case concerns supply substitutability?
Continental Can
Which case concerns demand substitutability?
United Brands
RPM may be very narrow.
Hugin
The default RGM is the whole of the EU.
Hilti
What factors might you take into account to determine the RGM?
Transportation costs; product characteristics (e.g. fragility); shipment patterns; or the location of plants (United Brands).
Although the RGM may in fact be very small, it must constitute a substantial part of the market.
Stena Sealink (Holyhead)
Save in exceptional circumstances, very large market shares will be in themselves evidence of dominance.
Hoffman-La Roche
There is a rebuttable presumption of dominance if market share is 50% or more.
AKZO
Shares below 35% are rarely dominant, but this may depend upon the structure of the market.
United Brands
What additional factors can be taken into account to determine dominance?
If the market shares of competitors are low in comparison (United Brands); barriers to entry exist; the undertaking has been in a strong position over a long period of time (United Brands); the undertaking has a high level of financial and technological resources. Dominance is less likely if customers enjoy buyer power.
Dominant firms have a special responsibility not to allow their conduct to impair undistorted competition on the common market.
Michelin
What is an ‘abuse’?
(a) Where a dominant firm in a market engages in conduct that is intended to exploit its dominant position, or (b) the presence of a dominant firm weakens the degree of competition, hindering the maintenance or growth of that competition (Hoffman-La Roche)
What are the two main types of abuse?
Exploitative practices (those which exploit persons dependent on an undertaking) and anti-competitive practices (those which impede competition by excluding competitors).
Either object or effect are sufficient.
STM
A network of similar agreements is more likely to distort competition than an isolated one.
Wilkin
Article 101 is directly effective.
BRT
NAOMI
Vertical 15%; Horizontal 10%; networks of agreements 5%. If there are hardcore restrictions, NAMOI will not apply.
NAAT
Market share cannot exceed 5% AND for horizontal agreements, aggregate turnover must be less than 40 million euros and for vertical agreements turnover of the supplier must be less than 40 million euros. Hardcore restrictions do not invalidate NAAT but national competition authorities may still take action.
Art 101(3) Exemption
Agreement must improve the production or distribution of goods or promote technical/economic progress and allow consumers a fair share of the resulting benefit. Agreement must not impose unnecessary conditions or afford the elimination of competition.
What Treaty Article should be invoked to challenge a penalty issued by the Commission?
Article 263 TFEU
Which Article of Regulation 1/2003 concerns information request?
Article 18; penalties for incorrect/misleading information under 18(2).
Which Article of Regulation 1/2003 concerns interviews of consenting persons?
Article 19.
Which Articles of Regulation 1/2003 concern investigations?
Articles 20 and 21, including dawn-raid procedures.
What penalties can the Commission issue?
A fine of up to 10% of worldwide turnover; third parties affected by the breach can sue for damages in national courts because Article 101 has direct effect per SBT; foreign third parties may also sue in UK national courts (Garden Cottage Foods; Crehan).
De minimis rule.
Volk
Joint dominance.
Italian Flat Glass
Examples of unfair pricing abuse.
United Brands and AKZO.
Examples of refusal to supply.
United Brands and Hugin
Unjustifiable price discrimination.
United Brands
Tying
Hilti
Articles 101 and 102 have direct effect
BRT
