Competition Law (Collusion) Flashcards
Hofner & Else v Macroton GmbH
o Court Held?
· Court of Justice
o What happened?
· A public procurement agency was classified as an undertaking whilst engaged in the business of employment procurement
o What precedent was set?
· Defined the term ‘undertaking’.
· Employment procurement was counted as an economic activity.
Motosykletistiki Omospondia Ellados NPID (MOTOE) v Elliniko Dimosio
O Court Held?
· Court of Justice
o What happened?
· ELPA, was responsible for granting the authorisation of Greek motorcycle events. ELPA was also involved in such events and received money from sponsorship, advertising e.t.c. ELPA refused to grant authorisation of a rival organisation’s event.
o What precedent was set?
· Undertakings can include organisations without a profit motive - irrespective of legal form and how an entity is financed.
· Under Article 102 - This was abuse of a dominant position
Diego Cali & Figli Srl v Servizi Ecologici Porto di Genova SpA (SEPG)
o Court held?
·Court of Justice
o What happened?
·A company given an exclusive concession by a port authority in Italy to monitor and clean up oil spillages, as well as state authorisation to charge vessels using approved tariffs. This was was challenged under Article 102
o What precedent was set?
·An entity is not considered as an undertaking where it is simply exercising the official authority of the State. Therefore Article 102 is not applicable.
Commission v ANIC Partecipazioni SpA
O Court held?
·Court of Justice
o What happened?
·ANIC’s conduct was a concerted practice and constituted an unlawful agreement
o What precedent was set?
·No need to establish what category such behaviour falls into. Contact between undertakings (direct or indirect) with the intent to influence a competitor is key and falls under Article 101(1).
What precedent was set in the Tepea v Commission case?
·Oral agreements fall under the ‘agreements between undertakings’ term within Article 101(1)
What precedent was set in the Hercules Chemicals NV v Commission case
·‘Gentlemen’s agreements’ or agreements dubbed as morally-binding fall under the ‘agreements between undertakings’ term within Article 101 (1).
Bayer AG V Commission (Bayer)
O Court held?
· Court of Justice
o What happened?
·A medicine manufacturer imposed an export ban on it;s medicine via it’s french and Spanish subsidiaries on the French and Spanish wholesalers. As a result the wholesalers could no longer export the medicine to the UK. The ban resulted in decreased sales within Bayer’s British subsidiary.
o What precedent was set?
· Unilateral conduct (conduct by a single undertaking ) is not included under the ‘agreements between undertakings’ term within Article 101 (1)
AC Treuhand AG v Commission
o What happened?
· AC Treuhand secretly contributed to the activities of a cartel between organic peroxide producers. The consultancy actively and intentionally stored secret documents, organised meetings, reimbursed expenses to conceal the cartel and collected & distributed commercial information within the cartel.
o What precedent was set?
· Tacit acquiescence (implied or inferred without direct expression) falls under the ‘agreements between undertakings’ term within Article 101 (1). Although the consultancy was not a party named within the written agreement between the members of the cartel it was enough AC Treuhand actively contributed.
What precedent was set in the Vereniging van Cementhandelaren v Commission case?
·The CoJ held a system of guide or target prices adopted by a trade association for cement wholesalers was prohibited by Article 101. Article 101(1) applies to non-binding decisions made by associations of undertakings (trade associations).
NV IAZ International Belgium v Commission (ANSEAU-NAVEWA)
o What happened?
· The trade association recommended to its members it should take account of a system of conformity checks and labels for washing machines and dishwashers.
o What precedent was set?
·Article 101(1) applies to non-binding decisions made by associations of undertakings (trade associations). The actions of the trade association had an appreciable influence on competition and therefore fell within the ambit of the article
What is parallel behaviour?
Where one undertaking takes certain steps and other undertakings respond by doing the same. E.g. a provider of household gas raises it’s prices and other providers respond by increasing their prices. This is not unlawful as long as it is NOT the result of collusion between parties. The difficulty can lie in proving the behaviour resulted from co-operation.
In the dyestuffs case the existence of a concerted practice was inferred from the evidence
What case dictates how you read the terms ‘object or effect?’
S.T.M case (Société Technique Minière v Maschinenbau Ulm GmbH). You read the terms disjunctively.
What happens in the S.T.M case (Société Technique Minière v Maschinenbau Ulm GmbH)
Concerned a contract where a German manufacturer granted a French company exclusive rights to sell certain heavy machinery in France. Such agreements are known as exclusive distribution agreements where they confer exclusive rights in the distribution of products within defined territory. The manufacturer maintained the objective of the agreement was to open up a new market in France, which promoted competition.
What are the different precedents set by the S.T.M Case?
·The mere potential to affect trade is sufficient to breach Article 101(1)
·The words ‘object or effect’ need to be read disjunctively. It is not a cumulative requirement
·The ‘object’ of an agreement is determined by looking at an agreement’s purpose in the economic context in which the agreement is to operate
·Ancillary restrictions defence - a restriction can be necessary to penetrate a new area for pro-competitive objectives
Can the effect of a number of smaller agreements combine to have cumulative effect on the single market? Can this be taken into account by the Court of Justice?
Yes - from a preliminary reference by the Belgian court in Brasserie de Haecht SA v Eilkin-Janssen.
A cafe was sued by its brewery for obtaining supplies from elsewhere and as it breached their prior agreement. The cafe had agreed to exclusively obtain supplies from the brewery in exchange for loaned cafe equipment and money. The cafe used Article 101(1) as a defence and claimed their agreement was in breach as the brewery had a large number of similar arrangements with other customers. As such, this prevented their customers from purchasing beer from other member states and breached Article 101
