EU - Competition Enforcement LGS 16

Question 1

Art 105

Authority?

Answer 1

Commission shall ensure application of principles under art 101 & 102

Question 2

Directorate General

Answer 2

Specific responsibilities for comepetition enforcement

Question 3

Reg 1/2003

Answer 3

Self Assesment of competition regulations

Infringe or fall within exemptions

Question 4

Who enforces?

Answer 4

National Courts / NCAs have primary responsibility for enforcement of art 101/2

Question 5

Art 5

(4)

Answer 5

NCAs powers to:

require termination of infringement

Order interim measures

Accept behavioural commitments

Impose fines and periodical penalty payments

Question 6

Art 7(1)

Answer 6

Commission can begin enquiry and is oblged to be kept informed of investigations by NCAs.

Question 7

Art 7(2)

Answer 7

Member states or a person claiming legitimate interest can lodge a complaint with the commission

Question 8

Athens International Airport

Answer 8

Flexible approach, consumers denied insufficient EU interest to allow conplaint.

Question 9

Art 18

Answer 9

Commission may request infomation, though this isnot obligatory under art 23(1/2) until commission orders by decision for information to be supplied.

Question 10

Articles 23 / 24

Answer 10

Commission must indicate legal basis for a request of information and state penalties for non compliance.

Question 11

Conducting investigation

Art 19

Answer 11

Power to interview indicuals & Collect information. NCAs have right to be present.

Question 12

Art 20 & 21 Formal Investigation

+ (4) (low importance)

Answer 12

Commission may conduct investigations of undertakings and their associations including their premises.

May inspect other premises,

Members of staff

Take copies

Question 13

Art 20(4)

Answer 13

Mandatory investigation, must supply written authorisation detailing investigation.

Question 14

Hoechst

Answer 14

Despite commission’s wide investigation powers must comply with national procedures such as obtaining a search warrant.

Question 15

Art 20(5)

Answer 15

Commission must inform NCA in advance of investagtion, though can be informal.

Question 16

Art 22(2)

(2)

Answer 16

Commission can direct NCA to conduct investigation on its behalf,

Undertaking can seek legal advice at the time of investigation, usually allowed 1 hour.

Question 17

Outcome of investigation

Art 9

Answer 17

Commitment decision, settlement with parties.

Question 18

Art 5 and 7(1)

+ 2 Cases + 5 commitments

Answer 18

Require infringment to stop.

Pepsi Cola

• To end exclusivity agreements
• End Rebates
• End Tying arrangements

Microsoft

• Give data to developers
• Offer PCs without media player

Question 19

Art 8

+ 2 Cases

+ Point

Answer 19

Order interim measures.

Camera Care

Akzo Chemie

Often will lead to early change of company behaviour.

Question 20

Arts 23 & 24

+ 4 arts / Points

Answer 20

Civil fines and penalties.

Art 23(1) Procedural breaches up to 1% of of undertaking’s total turnover

23(2) Substantive breaches up to 10% of total world wide turnover.

Art 24(3) Gravity and Duration of infrigemetn

Art 24 Periodic payments can be orderd of up to 5% of average daily turnover

Question 21

+ 2 Considerations when ordering penalties.

Answer 21

Commission Guidelines on fine setting taken into account

Aggravating and Mitigating circumstances taken into account.

Question 22

Immunity from Fines

4 points

Case

Answer 22

In art 102 proceedings

First whistle blower can receive immunity provided they are not the cartel ringleader.

Others that provide evidence can receive up to 50% reduction in fines.

Acknowledging involvement can reduce fines by 10%

Does not affect civil damages.

Cathode ray tube cartel, one undertaking received full immunity.

Question 23

Art 31

Answer 23

Specific right of appeal to EU courts against commissions fine, however court may increase fine.

Basf and UCB

Question 24

Private enforcement

(3)

Answer 24

Action for Breach of statutory duty,

arts 101 and 102 direct horizontal effect.

Takes effect as a tort claim, C must show causation etc.

Question 25

Damages for private claims ordered where?

Answer 25

National Courts

Question 26

Courage v Crehan Point + 3 Criteria

Answer 26

CJ ruled party to an agreement in breach of art 101 could sue for damages * National court must consider economic / legal circumstances * Respective bargaining power and conduct * whether terms are imposed as part of a network of similar agreements

Question 27

Vincenzo Manfredi

Answer 27

Victim of cartel maybe able to make claim for damages aginst cartel members.

Question 28

_Automatic Nullity_ art 101(2)

Answer 28

provides agreement in breach of art 101(1) - restriciting competition, and does not fall into exemption under 101(3) is automatically void.

Question 29

Panayiotou v Sony Music

Answer 29

Singer could not escape contracutal obligations despite them being in breach of 101(1) as judge was not certain had an appreciable effect on interstate trade and that the singer had had legal advice on the contract = not in a markedly weaker position.

Question 30

Summary 101(2) Public Enforcement Private enforcement

Answer 30

Under art 101(2) agreement maybe automatically void and party may walk away from it if unfairly imposed (panaytiou) Commission or NCAs - money goes to EU. Art 105 & Reg 1/2003 Action for damages in national court. BSD, victim of cartel, party to agreement. Crehan, Manfredi.