Definitioner

Question 1

Undertaking

Answer 1

“Every entity engaged in an economic activity regardless of the legal status of the entity and the way in which it is financed” - Höfner and Elser v Macrotron GmbH.

Question 2

Agreement

Answer 2

A concurrence of wills between at least two parties, the form in which it is manifested being unimportant so long as it constitutes the faithful expression of the parties´intention” - Bayer v Commission

Question 3

The relevant market

Question 4

The product market

Answer 4

Are two products interchangeable? SSNIP-test –> would consumers switch in a manner as to make the price increase unprofitable?

Question 5

SSNIP test

Answer 5

Small but significant non-transitory increase in price

Question 6

Market power

Answer 6

Undertaking ability to profitably raise prices over a period of time or to behave analogously, i.e. restricting output or limiting consumer choice.

Question 7

Dominant position

Answer 7

A position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by affording it the power to behave to an appreciable extent independently of its competitors, customers and ultimately of its consumers. - United Brands V Commission

Question 8

Economic activity

Answer 8

“Any activity consiting in offering goods or services on a given market is an economic activity” - Pavlov (Economic purpose or Proft-motive NOT needed)

Question 9

Concerted practices

Answer 9

Not a relevant distinction between CP and agreements. “A form of coordination between undertakings which, without having reached the stage where an agreement properly so-called has been concluded, knowingly substitutes practical coorperation between them for the risks of competition.”

Question 10

The geographic market

Answer 10

The hypothetical monopolist test: If the price of widgets were to e raised in France by a small but significant amount, would a sufficient number of customers switch to suppliers in Germany and render the price increase unprofitable?

Question 11

Cellophane fallacy

Answer 11

The situation where a monopolist may already be charging monopoly prices. A SSNIP would therefore must likely suggest a broader market than reality. paragraph 19 of the notice –> it will be taken into consideration.

Question 12

Article 101 (1)

Answer 12

Ban on agreements, concerted practices and decisions, which have as their object or effect the prevention, restriction or distortion of competition.

Question 13

Decision by association of undertakings

Answer 13

“Those acts of an association that serve to coordinate the conduct of its members or those subject to its authority”
- The constitution of a trade association
- Regulations governing the operation of an association
- An agreement entered into by an association
- The recommendation of an association if members have tended to comply with recommendation that have been made, and where compliance with the recommandation would have significant influence on competition.

Question 14

Anticompetitive by object

Answer 14

The coordination between undertakings must have purpose to significantly harm competition.
Examples:
- Price fixing
- Market sharing
- Export ban

Question 15

Anticompetitive by effect

Answer 15

The coordination must appreciable reduce competition between the parties

Assesment:
Theory of harm –> how and why an agreement/clause is likely to have negative effects on competition
Counterfactual analysis –> what would the situation be in the absence of the agreement

Obs! Wouter

Question 16

Horizontal agreements

Answer 16

An agreement between two parties at the same level of the supply chain

Question 17

Vertical agreements

Answer 17

An agreement between two parties at different levels of the supplychain

Question 18

Concentration

Question 19

Merger

Question 20

De minimis (By effect) (Definition of appreciable impact)

Answer 20

“Aggregate market share held by the parties to the agreement does not exceed 10% on any of the relevant markets” (horizontal agreements)

“if the market share held by each of the parties to the agreement does not exceed 15% on any of the relevant markets affected by the agreement, where the agreement is made between undertakings which are not actual or potentiel competitors on any of these markets” (Vertical agreements)

Question 21

Effect on trade between member states

Answer 21

Covers all cross border activity

Market share < 5% / Below 40 million € negative presumption of non-appreciabillity

Market share > 5% / above 40 million € positive presumption of appreciability

Question 22

Art 101 (3) conditions

Answer 22

1) Must improve the production or distribution of goods or promote technical or economic progress.

2) The consumers must benefit a fair share of the agreement and efficiencies

3) The restrictions must be indispensable to achieve the efficiencies in the first condition.

4) The agreement must not lead to elimination of competition in a substantial part of the market.

Question 23

Restriction of competition

Answer 23

For an agreement to be restrictive by effect it must affect actual or potential competition to such an extent that on the relevant mar-ket negative effects on prices, output, innovation or the variety or quality of goods and services can be expected with a reasonable degree of probability.

Question 24

Rebates

Answer 24

It is the conditionality of the rebate, that may trigger article 102

Question 25

Benefits of competition

Answer 25

Allocative efficiency: Ressources are best allocated in society

Productive efficiency:
Products are produced at the lowest cost

Dynamic efficiency:
Development of innovative product and furtherance of technology