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EU Law > Competition Law > Flashcards

Competition Law Flashcards

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1
Q

Viho v Commission

A

Art 101 Definition of ‘Undertaking’

Subsidiaries set up in different MSs with rules that they could not provide goods to other MSs were not separate undertakings within art 101, but could still fall within art 102

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2
Q

FENIN v Commission

A

Art 101 Definition of ‘Undertaking’

Public bodies do not fall within Art 101 when they are exercising their public power as they are not engaged in downstream economic activity when exercising these powers

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3
Q

Wouters

A

Art 101 Definition of ‘Undertaking’

Lawyers are undertakings: Offer services and bear the financial risks attaching to the performance of their activities, therefore carry on an economic activity

Art 101: Use of ORPIs

Rule by Dutch Bar Association prohibiting partnerships between lawyers and accountants did not violate art 101(1) as it was necessary in order to ensure the proper practice of impartiality in the legal profession

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4
Q

Bayer v Commission, Chimiefarma

A

Art 101 Definition of ‘Agreements’

A concurrence of wills between at least 2 parties which constitutes a faithful expression of the parties intention
The form of the agreement is unimportant

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5
Q

ICI v Commission

A

Art 101 Definition of ‘Concerted Practices’

Where practical cooperation is knowingly substituted for the risks of competition without actually reaching the stage of an agreement

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6
Q

STM v Machinebau Ulm

A

Art 101: Effect on Trade Between MSs

‘It is possible to foresee, with a sufficient degree of probability, on the basis of a set of objective factors of law or fact that the agreement may have an influence direct, indirect, actual or potential on the pattern of trade between the MSs’

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7
Q

Consten and Grundig

A

Art 101: Effect on Trade Between MSs

An agreement might tend to restore the national divisions in trade between MSs

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8
Q

Volk v Vervaeke

A

Art 101: Effect on Trade Between MSs

De Minimis exception: Agreements of minor importance are not caught by the prohibition
10-15% of the market

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9
Q

T-Mobile

A

Art 101: ‘Object/Effect of the agreement’

Object OR effect- alternative not cumulative requirements

Agreements by object:
Intention of the parties not an essential factor
Only needs to have the potential to have a negative impact on competition

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10
Q

O2 (Germany) v Commission

A

Art 101: ‘Object/Effect of the agreement’
Agreements by Effect:

Must demonstrate a causal link between the agreement and a restrictive/distortive effect on competition

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11
Q

Glaxo Spain

A

Art 101(3) Exemption: Burden of Proof

Initial burden of proof is on the undertaking
However commission may be required to provide an explanation/justification of evidence in order to refute it

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12
Q

Block Exemption Regulation

A

Regulation 330/2010: Block exemption regulation for vertical agreements

Provides for an umbrella exemption for all vertical agreements containing clauses restrictive of competition:

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13
Q

Horizontal Agreement

A

Agreement between economic operators that function at the same level of the market

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14
Q

Vertical Agreement

A

Agreement between undertakings which operate at different levels of the production chain

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15
Q

Meca-Medina

A

Art 101: Use of ORPIs

Swimmers challenged anti-doping rules of the International Olympic Committee as being restrictive of competition
Court said did constitute a restriction within the meaning of art 101(1) as they were justified by a legitimate objective of ensuring healthy rivalry between athletes

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16
Q

Tetrapak

A

Art 102 TFEU

Operates independently to Art 101
Exemption under art 101 does not mean an undertaking is immune from the operation of art 102

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17
Q

Continental Can

A

Art 102: Dominance in the relevant market

Product market- characteristics of the product looked at:
Characteristics which are particularly apt to satisfy an inelastic need and are only to a limited extent interchangeable with other products

18
Q

United Brands (Establishing Dominance)

A

Art 102: Dominance in the relevant market

Product market- characteristics of the product looked at:
physical characteristics of the product are relevant

Geographical Market- The area must be a substantial part of the EU, however in practice this is applied loosely as one MS, or even a part of it is enough

Indicator of dominance: A position of economic strength that allows the undertaking to behave independently of its competitors and consumers

19
Q

Product Market

A

Looks at the characteristics of the product itself

20
Q

Geographical Market

A

The area within the EU where goods are regularly bought and sold

21
Q

Temporal Market

A

The time during which market supply conditions are uniform

22
Q

Hoffman La-Roche (Establishing Dominance)

A

Art 102: Indicators of dominance

Very large market shares are in themselves evidence of the existence of a dominant position save in very exceptional circumstances

23
Q

Michelin

A

Art 102: Indicators of dominance

A market share of 40%+ is a good indicator of dominance

24
Q

Compagnie Maritime Belge

A

Art 102: Joint dominance

When establishing collective dominance should look at:

  1. Technological advantage
  2. Economic links such as an anticompetitive agreement
  3. Do the companies act together as a collective entity on a specific market?
25
Q

5 types of abuses of a dominant position

A
  1. Excessive Pricing
  2. Price Discrimination
  3. Rebates and Discounts
  4. Predatory Pricing
  5. Refusal to Supply
26
Q

United Brands (Abuse of Dominant position)

A

Art 102: Excessive Pricing

Where the price has no reasonable relation to the economic value of the product

27
Q

Hoffman La-Roche (Abuse of Dominance)

A

Art 102: Rebates and Discounts

Quantity discounts (discounts based on the most sold) and fidelity discounts (discounts based on sole use of undertaking) will be caught

28
Q

Azko

A

Art 102: Abuse of Dominance

Price Discrimination: Charging one group of consumers one price, and another group a different one

Sets out test for predatory pricing:
If a price is below average variable costs (The total average cost of making one of the product) it is automatically predatory

If a price is below average total costs ( The total of making one more of the product, after setting up original production) it will be predatory if it is designed to force others out of the market

29
Q

Glaxo Greece

A

Art 102: Abuse of Dominance
Refusal to supply

If an undertaking refuses to meet ordinary orders from wholesalers then it is abusing its dominant position

30
Q

British Airways

A

Art 102: Abuse of Dominance
Rebates and Discounts

Actions will be caught where they have exclusionary effects which make it more difficult/impossible for consumers to choose between other sources of supply/ partners
Justified as dominant companies are able to offer higher discounts than others, thus driving smaller companies out of the market

31
Q

Oscar Bronner

A

Art 102: Abuse of Dominance
Refusal To Supply

Refusal to supply will be abusive if, cumulatively:

  1. The refusal is possible to eliminate the undertaking seeking access
  2. That access is indispensable
  3. There is no actual or potential alternative
  4. The undertaking has no objective justification to refuse
32
Q

Art 102: ORPIs guidance

A

Commission’s Guidance 2009. Para 28, 30

33
Q

Regulation governing enforcement of competition rules

A

Regulation 1/2003/EC

34
Q

Metro

Metropole

A

Appeals against the commission: Wider interpretation of ‘individual concern’

Includes a natural/legal person who complained to the commission
also someone who participated in administrative procedure

Includes a direct competitor of a firm receiving an exemption

35
Q

Automec

A

Action for failure under Art 265 TFEU

Commission cannot be forced to
reach a decision that an infringement of competition rules has taken place or
proceed with the investigation where it considers a case does not have EU interest

36
Q

Guerin Auto

A

Action for failure under Art 265 TFEU

Any complaint is entitled to obtain a definitive decision from the Commission on its complaint
e.g formal rejection with statement of reasons
i.e failure to adopt a decision challenged under Art 265. This decision may then be challenged under art Art 263
No statutory time limit for this

37
Q

Main Changes brought about by Enforcement Regulation 1/2003/EC

A
  1. Art 101 given Direct effect
  2. National courts and competition authorities as main enforcers
  3. Commission role of overseeing and coordinating, power to set its own agenda and only address most serious/ novel cases
  4. Greater investigatory powers to commission: Art 17-20
  5. No formal application for exemption needed- will only be addressed if issue arises
38
Q

Advantages of enforcement reform

A
  1. Decentralisation
  2. Better use of Commission resources
  3. Direct effect and involvement of national courts: subsidiarity
  4. Enhanced investigatory powers of commission
39
Q

Disadvantages of enforcement reform

A
  1. Less legal certainty
  2. Potential for divergent application of EU rules across the Union
  3. Do national courts have the expertise necessary to apply the exception in art 101(3)?
  4. Multiple litigation in different MSs concerned
40
Q

Block Exemption Regulation: Agreements not exempted

A

Only vertical agreements not exempted are (not cumulative):
Art 3: Those with combined market share of more than 30%
Art 4: non-severable clauses that will take the entire agreement out of the scope of the exemption
Art 5: severable clauses which leave the remaining clauses of the agreement intact if they can stand by themselves

41
Q

Microsoft

A

Art 102

Use of dominance in one market to strengthen undertakings position in another- must continue with investigation

EU Law (11 decks)

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