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EU law > Competition law > Flashcards

Competition law Flashcards

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1
Q

Discrimination

A

An unequall treatment of situations that are comparable to each other for a specific reason.

E.g. nationality and origin

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2
Q

Direct discrimination

A

If you can identifty the ground on which the different treatment is based by simply reading the wording of the measure.

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3
Q

Indirect discrimination

A

When a measure does not distinguish according to the origin of a product. But in real life the measure has the same effect.

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4
Q

Objective differentiation

A

Different treatment of situations is fine, because the situations are different.

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5
Q

Non-discriminatory restriction

A

When a measure does not treat two comparable situations different, but the application of the measure makes the exercise of one of the EU cross-border freedoms less atractive.

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6
Q

Proportionality

A

Something must be proportionate in relation to something else.

Three step test:
1. is the measure suitable to achieve the objective it invokes?

  1. Is the measure necessary to attain this objective?
  2. Does even the least restrictive measure not excessively interfere with the EU free movement right?
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7
Q

Exception

A

Whatever falls under it, is located outside the scope of EU law.

E.g. a measure only having effect within the country

-> No proportionality test

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8
Q

Justification

A

Whenever there is a violation of EU law and the State is allowed to put forward good reasons for its course of action.
-> Proportionality test must be done

Explicit (art. 336 TFEU) Unwritten (mendatory requirements)

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9
Q

Exemption

A

If exempted, the measure is no violation of EU internal market law

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10
Q

EU Internal market

A

The heart of the European integration process.

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11
Q

Who can distort competition on the EU internal market?

A
  1. Member states trough State aid
  2. Undertakings trough Cartels and Abuse of dominant position
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12
Q

State aid in the form of taxes. Do you have to apply the MEO test?

A

No, because on the government can collect taxes so this test does not apply.

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13
Q

What are exemptions when it comes to State aid?

A

Use of Exemptions:
- 107(2) TFEU
- 107(3) TFEU

Consequence: the State aid does not violate EU internal market law

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14
Q

What is ‘‘The standstill clause”?

A

(State Aid 107) An Aid can only be put into effect after authorisation by The Commission->

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15
Q

Tacit acceptance

A

Meaning, if you are in the room with other undertakings forming an agreement, in order to not violate art. 101 TFEU, you have to publicly distance yourself from the agreement between the other to. I you dont, you have tacit accepted the agreement.

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16
Q

Why are vertical agreements less harmfull?

A

Because vertical restraints on intra-brand competition can encourage inter-brand competition

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17
Q

Definition “undertakings”

A

Höfner and Elser-case: any single economic entity engaging in economic activities irrespective of its legal status and regardless in which it is financed

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18
Q

Definition “agreement”

A

ICI v. Commission-case -> currency of wills

Consten and Grundig case -> horizontal and vertical

Bayer case -> bilateral

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19
Q

When is there an act of coordination?

A

If something is happening which would not have happened unnder normal market conditions.

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20
Q

“Conduct capable to affect trade”

-> case law

A

Consten & Grundig case &

Société Technique Minière

21
Q

What are exceptions of art. 101 TFEU?

A

1) An agreement between a parent company and a subsidiary
2) Conduct which is predetermined by regulation
3) Conduct which intends a public policy objective in a proportionate manner= Wouters case.
4) Conduct which fulfils a social function= Pouchet & Pistre case.

22
Q

When is there a concerted pratice according to art. 101 TFEU?

A

a. An act of coordination has taken place
b. It has resulted in a certain market behavior
c. There is a causal link between the coordination and the behavior.

23
Q

“Aid granted by the State or through State resources”

A

Stardust-case

PreussenElektra-case

24
Q

“favouring certain undertakings or the production of certain goods shall…”

A

MEO principle & Selectivity

25
Q

“Selectivity”

A

Material selectivity: Adrien-Wien case

Geographical selectivity

Tax measure? Gibraltar Tax reform-case

26
Q

When is trade affected between Member States as in arti 107 TFEU?

A

When a minimum is met: more than 200.000 Euro over a 3-year period.

27
Q

What is de requirement of “distortion of competition” as in article 107 TFEU?

A

The existence of a competitive link between the undertaking
receiving the advantage and the disadvantaged undertaking

28
Q

How do you examine selectivity when it comes to tax measures?

A
  1. Identifying the common or normal tax system in a MS
  2. Prima-facie selectivity: Favouring certain undertakings or the production of certain goods in
    comparison with other undertakings which are in a legal and factual situation that is comparable in
    the light of the objective pursued by the measure in question
  3. Justification: ‘in the light of the nature or overall structure of the tax system’
29
Q

What is a “service of general economic interest” in the light of article 107 TFEU?

A

Article 106(2) TFEU
− Compensation is no state aid if the recipient undertaking must actually have public
service obligations (= service of general economic interest) to discharge
− The compensation cannot exceed what is necessary to cover all or part of the
costs incurred in the discharge of the public service obligations, taking into account
the relevant receipts and a reasonable profit

30
Q

How can State aid be exempted?

A

Article 107(2)-(3) TFEU

31
Q

When kind of agreement’s are as mentioned in article 101 TFEU?

A

a. Formal agreement (contract)
b. Informal agreement: so long as there is a concurrence of wills, constituting the faithful expression of the parties’ intention, its form is unimportant (Gentlemen’s agreement)

32
Q

What is “decision of an association of undertakings” as in article 101 TFEU?

A

(trade unions, bar
associations…) (an association
making a decision on behalf of
undertakings)

Content of the decision must be considered as streamlining the economic activity of the undertakings covered by the association.

33
Q

What is “concerted practice”? as in article 101 TFEU?

A

coordination without a formal
agreement → see ICI case (Case
48/69)

Conditions:
1. Concertation: an act of coordination has taken place
2. Practice: subsequent conduct (market behaviour) of the undertakings involved (that is contrary to the normal competitive process)
3. Causal link between concertation (coordination) and practice (market behaviour)

34
Q

When is there an act of coordination as in “concerted pratice” as in article 101 TFEU?

A

Sharing information through direct or indirect contact=

Direct contact: exchange of information (not only related to prices)

Indirect contact: the information are not directly exchanged by competitors but they are in some ways received by them

Important to be disntinguished from: purely parallel behaviours

35
Q

What is in the categorie “collusion” restriction by object?

A

violation is presumed. 101(1) a-e TFEU. = no burden of proof. The object itself is already enough to distort competition.

36
Q

What is in the categorie “collusion” restriction by effect?

A

Anti-effect has to be proven. P Cartes Bancaires v. Commission-case. The effect is that competition is distorted. How? -> Effect-based analysis.

I. Determination on the relevant market
II. Examination whether there is concrete possibility for new competitors to enter the market or for existing ones to expand
III. Significant contribution of the conduct to the barrier to market access
IV. Appreciable effect on competition

37
Q

How do you test whether there is an appreciable effect on trade between Member States as in article 101 TFEU?

A
  1. Trade: involves all cross-border economic activities
  2. Capability to affect trade: a sufficient degree of probability that collusive conduct at stake influences: Consten and Grunding & Societe Technique Minière
  3. Appreciability of the effect: appreciably of the effect is 5% and the turnover must be at least 40.000.000. Both have to be met.
38
Q

What are exemptions under article 101 TFEU?

A

1: Block exemption?

2: General exemption? article 101(3) TFEU

3: De Minimus effect

39
Q

How do you determine the “dominant position” as in article 102 TFEU?

A
  1. Relevant market
  2. Dominance factors that influence the position of an undertaking of the relevant market
40
Q

When is there collective dominance as in article 102 TFEU?

A

a. More undertakings act as a collective entity
b. Independent economic entities being united by
c. Economic links that are on a specific market so strong that they can be considered to hold together a dominant position.

Collective dominance requires that legally independent undertakings present themselves or act together on a particular market as a collective entity !!!!!

41
Q

What is the definition of “dominance” as in article 102 TFEU?

A

A position of economic strength that allows a company to dictate rules in the market and behave independently of its competitors, its customers and its consumers.

Establishing dominance consists of identifying what THE RELEVANT MARKET is.

42
Q

When is a undertaking dominant in a market as in article 102 TFEU?

A

a. the structure and dynamics of the market
b. the extent to which products are differentiated
c. the market shares of the competitors
d. the undertaking’s financial reserves
e. the level of expertise within the undertaking

43
Q

When is there abuse of a dominant position as in article 102 TFEU?

A
  1. Exclusionary abuses= comprise all practices that a dominant undertaking can use to prevent competitors to enter the market or to weaken their position on the market through means different than normal competition.
  2. Exploitative abuses= comprise all practices that a dominant undertaking can use to take advantage of its posittion by imposing unfair trading conditions and therefore exploiting its customers and suppliers.
  3. The non-exhaustive list in art. 102(a)-(d) TFEU
44
Q

“affect trade between Member States’’ as in article 102 TFEU

A
  1. trade = cross-border economic activities
  2. Capability to affect trade
  3. Appreciability of the effect between Member States

There is no need to show actual impact on trade; potential impact is enough. Hence this is a generally easy requirement to satisfy.

45
Q

When can abuse of a dominant position be justified?

A
  1. Objectively necessary: because of the special circumstances of the market situation or public security
  2. Efficiency
46
Q

In what two ways does the EU try to achieve the goals of the internal market?

A
  1. Negative integration: prohibitions in Treaty
  2. Positive integration: Adjusting divergent rules of the MS by harmonising
47
Q

What is the negative integration?

A
  1. the Four Freedoms of the Internal market
  2. EU competition law
48
Q

How is a internal market realised? (different forms of harmonisation)

A
  1. Total (maximum)
  2. Minimum: offering lowers standerts is not allowed, but higher is
  3. Optional: two parrallel markets from which consumers, buisnesses etc. can choose from
  4. Spontaneous: takes place when MS voluntarally take measures which causes harmonisation, but the EU is not involved in this.

Art. 288 TFEU.

49
Q

How can State aid be justified?

A

Art. 108 TFEU

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