Competition Law

Question 1

Article 102

Answer 1

Abuse by one of more undertakings of a dominant position within the internal market in so far as it may affect trade between Member States eg

a) directly or indirectly imposing unfair purchase/selling prices or other unfair trading conditions
b) limiting production, markets or technical development to the prejudice of consumers
c) applying dissimilar conditions to equivalent transactions with other trading parties
d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations.

Question 2

Hofner

Answer 2

Undertaking encompasses every entity engaged in an economic activity regardless of the legal status of the entity and the way in which it is finalised.

Question 3

United Brands v Commission 1978

Answer 3

Undertaking = Position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained.
Court will look at physical characteristics, price and intended use. Market for bananas or fruit? Market for bananas so was a higher market share.
‘An area in which the objective conditions of competition are the same for all traders’.

Question 4

Hilti

Answer 4

Geographic market - the default market is all of the EU.

Question 5

Continental Can Market Share

Answer 5

70-80%

Question 6

United Brands Market Share

Answer 6

40%-45%

Question 7

British Airways

Answer 7

39.7%, next largest competitor was Virgin airways, and it only had a 5% market share.

Question 8

Hoffman-La Roche

Answer 8

43% (not enough). Court overturned initial decision, just ecause 40%+ market share, not necessarily dominant.

Question 9

Barriers to Entry (Indicating Dominance)
United Brands
Tetra Pak
Hoffman

Answer 9

United Brands - superior technology & access to capital
Tetra Pak - legal provisions
Hoffman - a well developed sales network, as they represent themselves technical and commercial advantages.

Question 10

Case C-62/86 Azko 1991

Answer 10

Above total costs = presumed to be legal
Average total costs = where dominant firm is selling at above AVC but below TC predatory where part of plan to eliminate competitor.
Average variable costs = prices below AVC assumed to be predatory.

Question 11

GlaxoSmithKline Cases 4-668-C-478/06

Answer 11

Refusal to supply products to existing or new customers.

Question 12

United Brands

Answer 12

Cannot top supplying a long standing customer who abides by regular commercial practice, if the orders placed by that ustomer are in no way out of the ordinary.

Question 13

Microsoft v Commission 2007

Answer 13

Intellectual property rights. Only in limited circumstances.

Question 14

Defences & Enforcement

Answer 14

Dominant firm must try to prove measures are objectively justified then the commission will review whether the conduct is necessary and likely to result in consumer harm.