Competition I: Collusion

Question 1

Collusion definiton

Answer 1

1. Agreement between undertakings/decision by an association of undertakings/concerted practices
2. Which may affect trade between MSs
3. and which has as its object or effect the prevention, restriction or distortion of competition within the internal market

Question 2

Hofner & Elser - Undertaking definition

Answer 2

‘Undertakings’ encompasses every entity engaged in an economic activity, regardless of its legal status or the way it’s financed
[But not where exercising official authority of the State (Diego Cali)

Question 3

Hercules Chemicals

Answer 3

It is sufficient if the undertakings have expressed their joint intention to conduct themselves on the market in a specific way (Gentlemen’s Agreements)

Question 4

Forms of agreements between undertakings (4)

Answer 4

1. Formal written contracts
2. Oral Agreements (Tepea)
3. Gentlemen’s agreements (Hercules Chemicals)
4. Tacit acquiescence (AC Treuhand)

Question 5

Vereniging van Cementhandelaren / ANSEAU-NAVEWA

Answer 5

Decisions include non-binding recommendations

Question 6

ICI Ltd v Commission (Dyestuffs) - Concerted practices definition

Answer 6

Concerted Practices are a form of co-ordination between undertakings which… knowingly substitutes practical co-operation between them for the risks of competition

Question 7

A Ahlstrom Oy v Commission (Wood Pulp)

Answer 7

Parallel behaviour does not equate to a concerted practice unless it’s the only plausible explanation

Question 8

Societe Technique Miniere

Answer 8

1. Established Rule of Reason
2. The mere potential of affecting inter-state trade is enough
3. The object OR effect of an agreement to prevent, restrict or distort competition

Question 9

Beef Industry Development Society

Answer 9

The object of an agreement is to be determined objectively by reference to the outcome. No weight is given to the subjective intention of parties

Question 10

Bayer AG

Answer 10

An agreement for the purposes of A101 cannot be unilateral

Question 11

European Night Services

Answer 11

An agreement must not have the ‘effect’ of restricting competition; any assessment should consider the economic content, what the agreement covers, and the nature of the market concerned

Question 12

Pronuptia de Paris

Answer 12

Franchise exclusivity deemed acceptable on the basis of the Rule of Reason

Question 13

Metropole Television

Answer 13

Denied the existence of the Rule of Reason Defence but deemed ancillary restrictions lawful

Question 14

Ancillary Restriction (Metropole Television)

Answer 14

Any restriction which is directly related and necessary to the implementation of main operation

Question 15

Volk

Answer 15

No appreciable effect on the market, its consequences may be protected by de minimise defence

Question 16

NAOMI (De Minimis Notice) Applicability

Answer 16

Horizontal Agreements:
Aggregate market share must not exceed 10%

Vertical Agreements:
Market share of each party must not exceed 15%

Question 17

A101(3): Block Exemptions - Vertical agreement is exempt unless…

Answer 17

1. A3(1) Market share of either party exceeds 30%
2. A4 Hardcore restrictions (whole agreement loses exemption)
3. A5 Excluded restrictions (Offending term only loses exemption)

Question 18

A101(3): Individual Exemptions

Answer 18

Positive Obligations:

1. Must improve production or distribution of goods
2. Must allow consumers a fair share of resulting benefit

Negative Obligations:

3. Restrictions must be indispensable
4. Not substantially eliminate competition

Question 19

Diogo Cali

Answer 19

If an entity is engaged in economic activity BUT it is exercising official authority of the state, it is NOT an undertaking.