Competition Law - Art 101 & 102 Flashcards
TEPEA
Agreements between undertakings can be oral or written
Transocean Marine Paint
- non-binding decisions by associations of undertakings can be a breach of 101
- here justified because breaking into new markets
- use of rule of reason
ICI
example of concerted practices
- parallel behaviour; when ICI raised their prices so did their competitors
- horizontal; between competitors of same size
Brasserie de Haecht
- all beer outlets in Belgium tied to certain breweries
- created a barrier so no one else could break in
- did not have the object of affecting competition but did have the effect.
test for affecting interstate trade?
- mere potential to prevent/restrict/distort trade it is caught by Art 101(1)
- Maschinenbau
Pronuptia de Paris
- exclusion clause for franchising
- distorts normal trade pattern so affects interstate trade
Volk v Vervaecke
- sold practically nothing so anti-competitive agreement was de minimis
NAOMI
Notice on Agreements of Minor Importance
- less than 10% market share horizontally
- less than 15% market share vertically
Art 101(1)(a-e)
hard-core anticompetitive practices
Art 101(3)
- positive obligations to fulfil
- negative obligations to obey
R330/10
- block exemptions
- only apply to vertical agreements
- in combination can have no more than 30% market share
- no hardcore practices
United Brands
- can determine RPM by looking to demand substitutability
- bananas are separate from other fruit
- brand name can help determine RPM
- vertical agreement because UB dominated supply chain
- excessively high pricing where there was no competition
Hilti
- nailguns not interchangeable with hammer and nails so separate RPM
SSNIP
Small but Significant (5-10%) Non-transitory Increase in Price
Continental Cans
- producing cans is easy so easy supply substitutability so market dominance will not last
- part of 1 MS can be a satisfactory RGM
Michelin
- look to intended use to determine RPM
- court held their tryres were for a particular use and had a particular RPM
- RGM can be only 1 MS
Boosey & Hawkes
look to marketing strategies to determine RPM
- targeted Northern brass bands
BPB Industries
look to market power to decide RPM
define RGM
Art 102 - common market or a substantial part
United Brands:
- where objective conditions of competition
- applying to the product in question
- are the same for all traders
RTE
Radio Television Eire
- look to volume of trade in an area for RGM
- forced to give up monopoly of TV broadcast guides in Ireland
Define dominance in the RM
United Brands
- position of economic strength
- which enables it to prevent effective competition
- the power to behave independently
Tetrapak
market share can demonstrate dominance in RM - 90%
- Predatory pricing can be abusive behaviour
Hoffman-La-Roche
controlling distribution systems can demonstrate dominance in RM
Intel
anticompetitive or exploitative actions constitutes abusive behaviour
- loyalty bonuses
Commercial Solvents Corp
Refusing to supply competitors constitutes abusive behaviour
- refused to supply them then bought them out when they went bust
Microsoft
- supplementary obligations can be abusive behaviour
- here, bundling all Microsoft products together (tie ins)
British Leyland
simply having the potential to affect interstate trade is enough to engage Art 102
Art 102
Abuse of a dominant position
Art 101
bans agreements between undertakings which may affect interstate trade and aim to affect competition
What is the enforcement method for anti-competition rules
R1/2003
how does the rule of reason relate to Art 101 and 102?
- it is not what companies say or intend in terms of planning concerted practices
- but what they actually do and what the actual effects of their practices are.
what does art 101 (3) mean?
101 restrictions do not apply if the agreements do not apply if they enhance competition
Hofner
any economic activity = an undertaking
World Cup 1990 Package Tours
Italian FIFA is an undertaking because had economic activity
Motosykletistiki
not a commercial company but engaged in economic activity so an undertaking
Comm v ANIC
- court views agreements, undertakings, concerted practices very widely.
- includes contracts and oral agreements
Treuhand v Commission
- a “gentleman’s agreement” engages Article 101
- hiding info for a cartel is contributing to anti-competitive practices
Tepea
oral agreements can engage 101
Bayer
- one company genuinely acting on its own cannot be an anti-competitive practice
- but if the other company is allowing or acquiescing to another company there can be anti-competitive practices
Maschinenbau
even mere potential to affect MS trade engages Art 101
Consten v Grundig
- distortion of normal trade pattern from electronic goods sales
- exclusive distribution agreements can be a breach if they lead to artificially high prices
R1/2003
- enforcement mechanism
- removed individual exemptions
- allowed block exemptions
Courage v Crehan
- UK competition law gives way to EU competition law
- tied pub arrangements are anti-competitive
B&I v Sealink
- RGM can be tiny
- here port of Holyhead was enough
- what is relevant is the volume of trade within the area
Akzo Chemie
- example of predatory pricing
