Professional Documents
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PARTICULAR JUDGEMENTS
Form quotas and tariffs for third country bananas, most of who are established in
Central America and owned by US grow-ers. Three years before the entering of the
Regulation into force under Article 19(2) Article 16 of the Regulation 404/93 A
special mechanism was provided to adapt quotas to exceptional circumstances and to
overcome difficulties of a sensitive nature monitored by a Management Committee
com-posed of EC and MS representatives (Article 16 in connection with Article 30
of Regulation 404/93) The Regulation did not contain explicit transitory
provisions to allow importers to adapt their business to the new market
organisation. The measures were aimed at restricting the importation of third
country bananas and market share in the Community under this regime of this EC
Regulation 404/93, quotas of bananas from third countries entitled the
preferential treatment under the regulation were designate to importers based on
prior sales. Imports outside these quotas are subject to prohibi-tive tariffs. The
banana market and conflicts fall inside what is call the purpose of competition
law /antitrust law as the control in the public interest of the actual or po-
tential market power of business firms. Article 113 of the EC Treaty give the EC
solely authority to enact the foreign trade law of the community and excludes
thereby any concur-rent competence on the part of Member States (MS). This in-
cludes the cross border services as well in goods. The EC is further responsible
under Article 113 and 228 for commercial agreements with third countries; and
under Article 238 for more far-reaching associations agreements with other coun-
tries. The EC also exercises foreign trade powers under the catching authority of
Article or Art 235 of the EC Treaty. Member States preserve the right to deal with
trade develop-ment and matters, and they have concurrent jurisdiction with the
Community over the provisions of services that attach a temporary or permanent
establishment in the Community. These areas are under EC jurisdiction an example:
is the Common Agricultural Policy (CAP); European Community also enjoys exclusive
authority with respect to the Regulation of Inter-national Trade in areas for
which it has internal compe-tence, another example is the ECSC Treaty by contrast
it is limited to the establishing Maximum and minimum rates of duty and enacting
measures of contingent protection. Most of the rules on foreign trade under the
European Community ap-ply to all imports into the European Union. There are bilat-
eral agreements between the European Union and United States of America under
Common Customs Tariff (CCT) consist of all the tariff measures affecting imports
into the European Un-ion at any particular time. The measures are published annu-
ally in the Integrated Tariff (Taric).
Many agricultural products are subject to special charges that apply instead of or
in addition to the regular duty. If the product is subject to a World Trade
Organisation (WTO) binding this operates at the maximum permissible custom charge.
Preferential quotas may apply to a single country or to a group of countries,
example the US’s tariff quota for oranges and orange juice that share with Cuba,
Argentina and Colombia. In the banana case, the Court(ECJ) repeated the main
reasons for which it excluded direct effect of GATT rules (in fact quoting form
International Fruit Company v. Produktschap voor Groenten Cases 21-24/72 [1972]
ECR 1219). And under Regulation 404/93 it defies all theoretical dis-cussion on
‘deregulation’ and ‘competition between legal or-ders’ there is a long story of
special interest lobbying be-hind the Regulation which established an EC Common
organisa-tion of banana markets for ACP growers closely attached to French,
Spanish and Portuguese importers. This was the dam-age of third country mostly US
owned growers stablished in Central America from where German importers had
enjoyed a regime of tariff-free imports, german banana importers who lost
considerable business after the enactment of the Regu-lation of 1 July 1993,
defying by FRG the regulation on the common organisation of the market on bananas
in favor of acp growers as french, spanish and portugueses importers this
regulation defies all theoretical discussion and competition between legal orders.
EC intervention in the banana market was the detriment of ‘third country’ mostly
US owner in Cen-tral America the Question raise is then What are constitu-tional
rights in the sense of sovereign powers? Since ba-nanas were so cheap and popular
to german consumers, it is the economic approach that define the market as
interna-tional and the Question raise Why wasn’t the Court judgement approach in
the banana judgement as UBC? Or was the Court so aware and experience in banana
economies since UBC that noone try to insolent this bridge of uncertainty through
the years? May be there is a problem of construction? Problem is that remedies
depend on another legal system (rights and du-ties) their nature context extent,
that the function of a national system is to take national remedies as in Italian
law, and national markets to prevent abuse of monopoly using fines and injuctions.
To understand competion law we need Article 86 which creates the rules and an
action of defense under such article is needed of expert economic advice, none
see a judgement of the court year’s later as a black out of the law of competition
and a miracolous judgment in 5 Octo-ber 1994 Case C-280/93 Germany v Council as a
dismisal by surprise, as the German government and distributer of ba-nanas claim,
so as well another demostration is that there is a long conflict and as well the
importers complain was inadmissible against the banana regulation where both the
german government and importers both lodged complains against the EC banana
Regulation with a view to obtaining interim relief under Article 185/186 and
looking for a void declaration to the regulation since according to importers was
inadmissible, but they lack standing to sue because they were not directly and
individualy concern by the regulation and they had no clue of EC law. It will only
allow recourse unde Article 215(2) of the EC Treaty to recover damages in case of
ilegality of community action. But Germany failed in many ways if the litigation
had ended with the Court judge-ment of 5 October 1994 this would have been
regarded till today as was there aim a claim under a Human Rights Treaty, Germany
not in front of the European Court of Justice but in front of the European Court
of Human Rights this would have been regarded by doctrine as a recognition of
fundamental rights theory in EC law since how rights are confered on in-dividuals
by the Treaty are to be enforced in each different national system and therefore
if the litigation had ended perhaps would only have provoked a debate on whether
the ECJ takes rights theory seriously or uses it just for the sake of rethoric.
But the German importers continue the litiga-tion and went to german courts, they
were successful in ger-many despite the clear wording of the banana judgement of
the ECJ. No UNCITRAL but a Regulation that did establish the European market order
for bananas as a common organisation for the market of bananas setting up a system
of assistance to ACP between banana producers closely attach to French, Spanish,
Portuguese importers establishing quotas, tariffs for 3rd country bananas from
Central America owned by US Growers, the measures and aiming to restrict the
importation of bananas from 3rd country bananas and market share in the Community
became the other wall in the german economy.
The problem here is the lack of description and the bridge that nobody seems to
link between the time of the Commis-sion decision and the Courts judgement in the
United Brands Case Aff.27/76 of 14 February 1978 and the Banana Judgement of 5
October 1994, in the second judgment any of the de-fences or complains of German
sovereignty over rights of traders and trade, since United Fruit now United Brands
op-erating under the well known chiquita label was soon joined in the quest by the
predecessor of Del Monte and Dole, within a decade, the big three had holding in
much of tropi-cal latin America, the Caribbean, Africa and Southern Asia. Where
this oligopoly didn’t set up plantations, it dominated shipping and marketing: no
one mention the illegal transpor-tation of bananas to Germany and coffee and from
Latin American ports under Latin American flags and all the enrich business small
men now a days billionaires with the products that so far, never gave a cent to
the poor starving nations of Central American workers, but yes to the rotation of
cor-rupted underground transactions of the Latin American cor-rupted business
institutions, and governments and the Euro-pean market was consuming
bananas,where vast areas of land continuously were appropriated from subsistence
farmers by governments keen on extending railways lines and sovereig-nity areas to
all areas of their territory and during the final judgement and all articles from
different authors that claim the sovereignty and exploitation of German rights no
one read to write this thesis or remember what created the European market in
competition law how article 86 is apply to foreign multinational, what was then
the multinational approach to the German market or the other way around, how this
is related to their national system when community law is a separate system of
national law since the first refer-ences are to be found in the Report to the
European Assembly prior to the Enactment of Regulation 17/62 where it was rec-
ommended that before further legislation was enacted, more knowledge of the
national law of the member states was needed. Over one hundred years later the
process of oligop-oly continue, in the year 1997 Costa Rica became for the first
time a net importer of bananas while its banana ex-ports were second to Ecuador in
the world market. Banana cash continues to pay off international debts incurred
bying American inputs and technical support in the 1970s. Liberal-ized trade and
structural adjudgement plans mantained the pressure to export bananas which are
prescribed by the IMF which demand increased exports and cuts to government social
spending in exchange for new loans and rescheduling of pay-ments on old loans. And
in the first case of Chiquita ba-nanas prices depended on the country buyer one
can assume that the producers of bananas sold the distributor (Ger-many)
different prices, as with UBC which did not create different prices but a clause,
so discrimination presupposes the division of customers into groups Court some how
for got the total analysis that bananas Is as well animal food for birds, monkeys
etc. you can produce vitamins( as in join dominance), shampoos, be use as a model
as Josephine baker rise her image with bananas to conquest her public in Paris
(single market) which could be according to this factor a differential product
inside the product market. UBC doesn’t bear the risk of consumers market the Court
considers verti-cal integration as an element of dominance as the seller UBC
Germany wanted to discriminate in order to raise profits in-stead of helping
German importers adapt changing market situations in the elasticity of dominance
which is high and low, ubc superior efficiency is a predator as Germany or
standard oil, UBC got power over time, Germany is behind with short term factors
as weather, strikes, countries cur-rencies and third world country debt there is
no risk for German nor for ubc so call vertical relations. So this the-sis is
about that a demonstration of that problem in verti-cal market integration and the
consequences in time.
I-A: ARTICLE 86: RELEVANCE TO COUNTRIEs of this article is that this article aloud
direct applicablility and it can be litigated in national courts, and since
bananas are relevant product market separate from the general product market, case
law in article 86 is clear. Since UB had a highly or-ganised integrated system,
for the production and distribu-tion of bananas as owned plantations and had
connections with independent products once this product landed in the eec the
bananas were put into the hands of distributors, competitors could use the same
method of production and dis-tribution according to the ECJ and the Commission, a
cumula-tive effect of dominant position. Germany is the explanation why in UB the
ECJ and the Commission had to wait till the banana judgment and then didn’t
explain why the competitors would come up against such obstacles if they try to
use the similar methods. In UBC the ECJ didn’t consider the possi-bility of a
competition entering the market at just one level, the degree of competition which
is consistent with a finding of dominance with interchangeable products may be
compatible con dominance and competitive pressure from out-side the relevant
market: bananas are products with multiple applications juices, ice cream etc. The
absence of potential competition constitutes an indicator of dominance it needs
potential of large capital investments and great operations of those undertakings
already in the market and by the prac-tical difficulties of building a comparable
system. As demostrated in UB where ECJ considers cumulative effect of the
obstacles facing a new competitor were almost insupa-rable, the article control
possible oligopolies for it pur-poses Article 86(1) phrase: one or more
undertakings is equal to the possibility of controling one or more undertak-ings
or control or oligopolies suitable for the use or con-trol of oligopolies, UBC
can’t fit into exploitative or anticompetitive behavour, UBC geographical price
descrimina-tion was condemned by the Commission and the ECJ since UBC landed
bananas in two communites ports and charged different prices depending on the MS,
so distributors will sell de-pending on country high/low prices to the consumer
subject to “green banana clause” which forbade resale of the ba-nanas when green
and UB created a rigid partitioning of na-tional markets at price levels which are
artificially dif-ferent.
In so far as the terminology of the Article 86 impact of the prohibited practices
on competition within the Common Market requires additional attention: The
requisite measure of market control in the definition of Dominant Position: “it is
necessary to observe that the definition of Dominant Position relates to the power
of the enterprise unilaterally doing what Article 85(1)”; calls: prevention,
restriction or distortion of competition. Another example is in UB case the Court
defined Dominant Position as : “A position of economic strength enjoyed by an
undertaking which enables it to prevent effective competition being maintained on
the relevant market by giving the power to behave to an appre-ciable extent
independently of its competitors, clients and ultimately of its customers”
. A mechanical standard for finding a Dominant Position in the context of Article
86 seems inadequate, for control can be determined only by a factual evaluation of
the peculiari-ties of the structure of the relevant market. The require-ment that
the Dominant Position be within the Common Market or in a substantial part of it:
would appear to set only minimum territorial limits rather than define the
relevant market. Article 96 makes clear that it is necessary that the Community
wide range of competition be effected, as long as the effect be felt in
substantial part of the Common Market. Where various territories or countries are
the relevant mar-ket to constitute substantial parts of the Common market, in
decisions of the commission on Article 86 it is not clear: Whether countries that
constitutes nation of the substantial part of the Common Market, the Commission
was comparing their respective territorial areas or: Whereas it was making some
forms of economic comparison ? The definition of the relevant market in which the
Dominant Position is held: “Any use that is incompatible with the Common Market is
abuse and is irrelevant if the perpetrator of the abuse was conscious of the
prohibited nature of such activity.
The Court declared that GATT must have direct effect before an applicant can
invoke GATT rules so the Court dismiss the application of Germanay for lack of
validity.
Since Germany was affected by the new import regime for ba-nanas and its
government filed an application to the Court of Justice under Article 173 of the
EC Treaty for a declara-tion that title IV and Article 21(a) of the banana Regula-
tion to be void. It requested interim relief, but this was rejected by Order of 29
June 1993 . Both declarations the banana judgement and the ECJ created a
foundation for prior proceedings. The German argument submitted that the Regula-
tion infringed essential procedural requirements, substan-tive rules of Community
law, inter alia the principle of proportionality, the right to property and the
freedom to pursue trade or business, and community international obli-gations
under GATT these were grounds invoked by the German government for an annulment of
the banana Regulation.
The Court dismissed the application and maintained the Ba-nana Regulation’s
validity. The Court has always required that GATT should have direct effect before
its provisions can be invoked by an applicant in court proceedings, the court in
the case established that direct effect of commu-nity law a prerequisite for a
private party to be able to invoke it in a national court and acquire rights. The
Court has declared that GATT must have direct effect before an ap-plicant can
invoke GATT as ground for annulment, when the applicant claims that secondary EC
law is in conflict with GATT rules. This was clearly store, even when the
applicant is a Member State, GATT can only be invoked if it is given direct
effect. On 25 July 1994, the German Government re-quested the Court to give an
opinion regarding the framework agreement on bananas and on 29 March 1994, the
framework agreement on bananas was reached between the European Union, Colombia,
Costa Rica, Nicaragua and Venezuela.
In a new attempt to scape the unfavourable effects of the agreement Germany
applied to the Court for a declaration that decision 94/800/EC was invalid . The
argument stands as that the basic rights, such as the right to property, the right
to pursue trade and the principle of equal treatment of category A and C operators
were infringed by the Frame-work Agreement on Bananas. The case is still pending
before the Court. There are also other litigation’s before German Courts.
2-B: RELEVANT PASSAGES OR STIPULATION TO THE The relation of the following CASES
to the banana judgement: The law of sup-ply and demand is a prescriptive rule to
be applied rather than a description of certain economic phenomena the Commis-sion
reports to the judgment is crucial for the interpreta-tion of Article 86 in UBC
case plus application plus clarify the concept of abuse where the court enlarged
greatly on its earlier decisions regarding the notion of dominant position and
abuse since UBC resisted new competitors attempting to stablish themselves on the
whole of the relevant market. Was able to keep up it figures on all the relevant
national mar-kets and that new customers continue to buy more bananas from UBC
even at the highest prices:
The consequences of the judgement on the banana import re-gime for the enforcement
of the Uruguay agreement : two judgements (ECJ) Germany v Council (banana
judgement) C-280/93 judgement of 5th October 1994 and International Fruit Co. and
others v Commission Cases 41-44/70 ECR[1971] 421.
: they argued that in the context of the enforcement of GATT in EC law, the same
conditions should apply to chal-lenges brought by individuals in the context of
the action under article 173 of the EC Treaty.
Preliminary ruling:
Two further judgements: Fediol III and Nakajima (ECR [1991] I-2029)
Regulation 2641/84 “new instruments of trade policy”
Article XXIII of GATT case 104/81 Kup (1982)
Fediol and banana judgement where imports where divided in three categories, like
in third category third country ba-nanas (reduced duty 2 million tones for import
of non tra-ditional ACP and 3rd country bananas), 100 ECU per tonne for 3rd
country bananas, 850 ECU per tonne for 3rd country bananas 850 ECU, 66,5% for
operators who mark 3rd country bananas)
CLASSIFY POINT C:
[United Brands Company and United Brands Continental BV vs. Commission [1978] ECR
207, [1978] 1 CMLR 429 (Case 27/76)] where dominant position is explain because
UBC produced ba-nanas and was accused of a variety Of abusive Practices that were
said to infringe Article 86. On many issues:
a- of law
b- of policy
And in this framework: -of control dominance: UBC wasn’t the only active direction
-The Court declared that: “An under-taking does not have to have eliminated all
opportunity for competition in order to be a dominant position.” and ob-served:
“That UBC’s market share, fixed by the Court 40-45% was several times greater than
its nearest rival”. Con-cluded that limited war price had not altered market
shares. Then out of the above question the following Con-clusion: the bigger the
market share, the more likely that dominance is established. Since UB highlight:-
that each mar-ket requires special attention and must be judge according to its
own peculiarities, then:- Defining a market involves a calculation of the barriers
that surround that market. Those particular barriers to competitors entering:
a) the market are the exceptionally large capital invest-ments required for the
creation and running of banana plantations
b) the need to include sources to supply in order to avoid the effects of fruit
diseases and bad weather (hurricane, floods etc.)
c) the introduction of an essential system of logistics which the distributor
of a very perishable product makes necessary
d) economics of scale from which new comers to the market can’t derive any
immediate benefit and
e) the actual cost of entry make up inter alia of all the general expenses
incurred penetrating the market such as:
i- the setting up of an adequate commercial network
ii- the mounting of a very large-scale advertising cam-paigns
iii- all financial risks -the cost (of which are irrecov-erable if the attempts
fails)
n 100% occupation of market isn’t a cause for concern where another firm is
able freely to enter that market
n potential competition control the liberty of the firm in occupation
n Definition of the market requires an appreciation of its economic context as
in: [Continental Can (Case 6/72) [1973] ECR 215.]
n Over estimation of entry barriers leads to unnecessary intervention in
markets which would correct themselves: [Hugin Kassaregister AB v Commission (Case
22/78) [1979] ECR 1969; [1979] 3 CMLR 345 ECJ]
CLARIFICATION TO POINTS A B C :
The consequences to the judgement on the banana import re-gime and the abuse of a
dominant position where the courts
ABUSE in United Brands Case provides continues with a list of the types of conduct
subject to control CONDEMNED BY THE COMMISSION:
a) the abuses under Article 1(a), (b), (c) and (d) of the decision where:
1- UBC forbade its distributors from reselling bananas when still green
2- UBC routinely under supplied in response to orders as to the force
distributors to sell locally rather than seek to penetrate new market:
b) Article 1 of the Decision listed four heads of abuse.
3- cut off supply of chiquita banana to Olsen, a Danish dis-tributor
c) UBC selling prices dependent on the customer’s Member State.
4-imposed at the banana port of entry into the Commission
before any supplement based on transport cost within the commission may have cause
such discrepancy and
5- UBC charged unfair prices in relation to the economic value of the product
supply.
Which aspects of UBC policy were likely to exploit consumer directly? And Which
were more indirect in that they served to reduced or suppress competition?
The Court accepts that the dominant firm is precluded from arbitrary conduct: -the
precise nature of the control exer-cised in this area depends on the nature of the
market in issue.- One of the several matters considered in UB was the conduct of a
dominant firm towards the supply of its custom-ers. Therefore in THE CASE: UBC was
found by the Commission to have abused its dominant position in the banana market,
where the firm sought annulment of the decision before the Court. UBC is the
largest World seller of bananas in the Commission opinion:
1- Enjoys a Dominant Position on the banana market and is a substantial part of
the Common Market
a- Owing not only the
Markets share about 40/45%
of the trade in bananas within the Six States of the EEC (several
Times larger, than the market share of its competitors ,but smaller than the
market share which was considered to be relevant in earlier cases of dominance)
2-, but also to various factors that applied only to it and which, in the Court
Opinion gave it advantages to competi-tors:(the vertical integration of its banana
business).
The Commission had adopted a narrower market definition than that advocated by UB.
The narrower the definition the more likely that dominance will be established.
Disagreement be-tween Commission and Undertaking in this fashion is a common
feature of Article 86 Cases. Markets may also be defined by reference to their
territorial scope, even if consumers will not switch from for example: of green
mango’s to other types of mango’s, the single national green mango producer is not
dominant if producers of green mango in other States can im-port their product of
competition.
Facts: -UB owns a)numerous plantations and a fleet refrig-erated boats; -b)it
controls banana ripening in some coun-tries; -c) and it takes direct charge of
advertising; -d)sales promotion activities; -e) and conglomerate charac-ters: Nor
just its economical power put UBC in a position to place major obstacles in a way
of affective competition by its business rivals; for example: -while potential
competi-tors found themselves with major barriers to entry of the market: UBC
rejected the charge of discrimination and con-front its own opinion: It had been
active in plant research and developed a more prolific and Disease resistant
variety of bananas that gave its advantage in regularity of supply when natural
disasters hit a particular part of the growing area.
-Competitors could also buy or established plantation in di-verse areas and some
planters had surplus banana for sale.
-UBC owned enough refrigerated vessels to ship over half the bananas sent to
European ports, there is a charter market for such ships and ownership can be a
disadvantage when freighted rates slump.
-It had also arranged for very careful quality control and extensive promotion of
the bananas it had packed in the tropics bearing chiquita mark.(In Central America
especially in Honduras, were UB owns as well Rosario Mining Co. and UB).
-Chiquita bananas were found by the Commission to fetch some
30/40% more than unblended one’s
-the dominant position according to the Court stabilised by the Court by a number
of factors none which is decisive, but critical
-time dimension is out of the picture
-European ports
-short term monopoly
-the mechanism of the market are adversely affected
-reap monopoly profits whether they occur
-the Court doesn’t give extensive explanations of its think-ing, but simply
indicates the result which it haSometimes
-Sometimes the analysis of the Court judgements could point more than one
direction and then:
-One simply has to consider those factors that appear to be relevant and could
have been taken into consideration.
In 1994, the multinational shares of the EU were distributed as:
Chiquita (USA) 18.5%
Dole(USA) 15.0%
Del Monte(USA) 8.0%
Fyffes (Irland)
and Geest(UK) 16.5%
In its Chiquita Decision of December 17, 1975 a fine of one million units of
account was imposed (Article 2) and UBC was required to bring the infringement to
an end (Article 3 (a) (b) a periodic penalty payment of 1000 units of account per
day was fixed by Article 4 in respect of the obligations under Article 3(b).
In its decision, of December 17, 1975, the Commission found UBC guilty of having
infringed Article 86 EEC by its conduct as a dominant supplier of bananas to a
market comprising Belgium, Denmark, Germany, Ireland, Luxembourg and The Neth-
erlands, the Commission was concerned about the need of The young, the old and the
infirm who may have difficulty eating other fruit.
-the interests of the toothless, are sufficiently protected by the inability of
the dominant firm to discriminate against them
-it would lose so much market share from the rest of the population that it would
not be worth raising prices to ex-ploit the weak
-when considering under Article 95 of the EC Treaty Whether a tax imposed on
bananas by Italy protected Italian soft fruit, the Court held that bananas must be
regarded as being in partial competition with such fruit [(Commission vs. It-aly
[184/85] E.C.R.2013 par. 12)].
Article 1 of the Commission decision over UBC specified four heads of abuse:
A-) that UBC had required its ripener/distributor in the relevant Member State to
refrain from reselling green ba-nanas that it had supplied to them (“the green
banana clause).
B-) that for it's “Chiquita” brand of bananas UBC had charged other trading
parties dissimilar prices in respect of equivalent transactions.
c-) that for “Chiquita” bananas UBC had charged unfair prices;
D-) that from October 10, 1973, to February 11, 1975, UBC had withheld supplies of
bananas from its former customer, the Danish ripener/ distributor, Olessen.
THER RELATION TO THE CLASIFICATION OF POINTS A,B,C:
In point A there seems to be a complete disregard to compe-tition law, and
according to german defense in the case to human rights, since the conception of
european law according to which the european conception of judging on a member
state level, since some of these principles are basic for the courts and member
states some of the existing eec agree-ments with less developing countries.
Members apply differ-ent systems in relation to bananas the ones originating from
latin america are subject to custom duty of 20% ad valorem consolidated with the
framework of gatt, and as in united brands where dominant position is explain and
explain that each market requires special attention and must be judge ac-cording
to its characteristics.
SUMMARY: At the time the WTO opened the discussion on the banana issue, three
distinct import regimes were operating in Europe. One being applied in Germany
allowed for the im-portation of a substantial amount of bananas without payment of
customs duties. The protected market program was being used by
France (aimed at favouring imports from its Overseas De-partments and
Territories, Cameroon and Ivory Coast.
Portugal (which imported from Madeira and former African colonies)
UK (which imported from Jamaica, Surinam and Belize)
Spain (Canary Islands)
Italy (Somalia)
Northern European Countries (Holland, Ireland,Denmark, Be-ligum and Luxembourg)
were importing the dollar banana (from Latin America) with no quatitative
restrictions, prior pay-ment of a 20% customs affair.
In 1990 bananas were a single exception in the Community in terms of the rule
applied for the free circulation of goods among its members. The five year debate
on the establishment of CMO (banana common market organisation) centered around
several contradictory requisites: guarantee of the community preference principle,
maintain community farmers incomes, ensure preferential relations with ACP
countries as formally agreed in the Lome Agreements; keep shares of different ori-
gins and avoid significant differences in production costs which could double
depending on the origin of the produce. Most of the activities of large
multinationals such as Chi-quita, Dole and Del Monte were precisely in Germany
(the German market, unlike others, was almost exclusively a ‘ba-nana dollar’
market). The most polemic aspect of the CMO whose negative effects particularly
attain multinationals such as Dole, Chiquita and Del Monte is the establishment of
a distribution of the import quota aimed to give way to “associations” among
Community growers and “dollar ba-nana” importers. This mechanism aims to guarantee
a market for 30% of the community’s production, share that it attrib-uted to
operators that work with bananas from traditional ACP countries while only 66.5%
percent is destined to im-porters from third countries and non traditional ACP
coun-tries, that is, imports operating in Germany and Northern European countries.
The remaining 3.5% is reserved for new operators. Import licences are divided up,
in turn among the various stages of the chain: int he case of community ba-nanas
57% is allocated to the production export sector, 15% to importers and 28% to
those in charge of ripening them. On July 1993 the CMO authorized the free
circulation of prod-ucts of any origin in the European Market and provided in the
same year a 2.5 million ton quota be established for im-ports from third countries
and non-traditional ACP coun-tries. Imports in excess of this quota were subject
to high tariff. Compensatory aid was considered for community pro-ducers based on
reductions in the market price, as well as structural assistance to improve
competitiveness levels for production. EEC Regulation 403/93 finally ended thirty
years of domestic barriers which had made the European market a complex puzzle
between 12 different markets. The setting up of a Single Market in 1992
eliminating all internal barriers for intra-community trade was contradictory to
the concept of national markets. As a result of the CMO, the European market
experienced a revolution which had a strong impact on the structure and operation
of the international market. New alliances were forged and external growth was
evidenced in many European and US multinationals. Enterprises which had
traditionally operated in the “dollar banana” zone moved on to make investments in
Africa setting up ties with opera-tors of the European production zone. The
European market distribution mob a notable alteration. Changes continue to be
evidenced, and the biggest battles are being fought be-tween the large enterprises
and the war in between large en-terprises and the role played by the authorities
in Brus-sels. The CMO is in fact one of the sectors in which the european union
intervenes most actively. The banana CMO is strongly challanged by several Latin
American countries. In 1992 Costa Rica, Colombia, Guatemala, Nicaragua and Vene-
zuela requested that GATT form a first panel of experts. These countries were
oppossed to the markets protected by France, Greece, UK, Italy, Spain and
Portugal. In May 1993 based on articles XI and I of the GATT, the panel ruled that
the quotas and other preferential tariffs applied by several European countries
were illegal. The EU blocked approval of this Resolution for an entire year in the
GATT Council of Representatives. In 1993 when the EU launched its CMO for the
banana, the GATT panel ruling was ignored. The creation of the CMO spurred the
formulation of a request for a second panel this time by the US, Ecuador,
Guatemala, Honduras and Mexico. On this occassion, the group of experts concluded
that the European Regulation violated different items of the GATT agreement and
recommended that the EU modify specific rights particularly the preferential
rights awarded to the ACP as well as import licencing (was a price war between
third world countries?) EU representatives also presented an appeal to this panel,
asserting that the US was not a pro-ducing country and therefore could not be a
part of the ar-bitrage proceedings. In September 1997, the WTO rejected Europe’s
appeal and confirmed the panel’s earlier deci-sion.The decision seriously
questioned the system where Europe organized the banana market. Europe’s response
capac-ity, which allowed for either payment of an indemnization to the producing
countries for the damages inflicted or chang-ing the system, was significantly
curtailed because the US was not willing to accept compensation, demanding instead
that a change be made in the functioning of the European Market.
The CMO ruling did not altogether rejected the European ba-nana system moreover it
considered legitimate the EU market access limitations which were determined on
the basis of tonnage. Consequently, the quota of more than two million tons
granted to the “dollar banana” was accepted. Simi-larly the WTO accepted the
privileged access for ACP coun-tries. But also on the other hadn, launch an attack
on the very core of the European market system: import licence man-agement, as
well as the compensation awarded for losses in cases of climatic disasters by
providing import licences for “dollar bananas”.
The agreement that CR, N and Ve signed in 1994 with the EU did not include Ecuador
the world’s main banana producer, because it was not a GATT member at that time.
This agree-ment provided for a 200,000 ton increase in the quota and a reduction
from 100 ECUs to 75 ECUs in the import tariff per ton, as well as a more favorable
treatment in the awarding of import licences. In response to this these countries
dis-continue the demand process begun against the EU. When the next round the CMO
can be expected to be a element of lack of harmony of trade negotiations. A
crucial issue to be dis-cussed will be the compatibility that exists between the
Lome Convention and the WTO rules. Export certificates, the lowering custom
tariffs, and the European import quota lev-els are other areas that merit analysis
of the next round of negotiations. The most significant aspect that exit from this
case is the fact that certain products continue to be negotiated outside the
framework of the global trade nego-tiations. In the banana market out of total 45
million tons of bananas produced worldwide, close to 10 million are ex-ported.
Approximately 3.5 million of exports go to the US and 3.9 million tons to the
Union. Detail sales in the EU result in the invoicing of about US$6 billion, in
CA:CR,H and G as well EC and Col the banana is an important foreign currency
source. Since early XX century bananas started to grow in Latin America on a
large scale by the UFC. The three large multinationals that operate under the
trade names Chi-quita, Dole (Standard Fruit Company) and Del Monte, there is now
the Noba group in Ecuador (Bonita brand) the Colombian enterprise Banacol, Uniban
and Proban and the multinationas Fyffes (Ireland), Geest (UK) and Jamaica
Producers. Vertical restrains are agreements that are made between the parties at
different levels of the production process, a typical ex-ample being a
distribution agreement between a manufacturer of a product and a retailer .
In all judgement since UBC, the Court defined a dominant position as: a position
of economic strength enjoyed by an undertaking which enables it to prevent
effective competi-tion being maintained on the relevant market by giving it power
to behave to an appreciable extent in despondently of its competitors, customers
and ultimately of consumers.
-imposing prices depending on the country of buyer
-antitrust perspective: efficient allocation of resources
-European market was divided already by the differences in custom duties.
now a Brief idea of the range of Article 86: it is in the cases on anti-
competitive abuses that discussion of objec-tive justification is most likely to
be found as in Tetra Pak 1 (BTG licence) OJ [1988] L272/27, [1988] 4 CMLR 881, on
appeal case T-51/89 Tetra Pak rausing SA v Commission [1991] 4 CMLR 334, [1993] 4
CMLR 586. In Decca Navigator System: OJ [1989] L43/27, [1990] 4 CMLR 627 the
Commission held that it is an abuse for an undertaking in a dominant position to
enter into an agreement with an actual or potential competi-tion with the
intention of sharing markets or suppress the efforts of competitors. The language
of objective justifica-tion and proportionality can be found with increasing fre-
quency in the decisions and judgements of the Commission, the Court of First
Instance(CFI) and the ECJ.
-Napier Brown -British Sugar OJ [1988] L284/41, [1990] 4 CMLR 196 at paras 64 and
70.
If UBC had achieved considerable efficiency in its banana business in the face of
strong competition from other firms.
The result of the case meant that it had to abandon the dis-tribution system which
arguable would be inferior in con-sumer welfare terms.
UBC held the ECJ that it had abused its dominant position by charging different
prices for its bananas according to the Member States of their destination. It
sold bananas to distributors, ripeness at Rotterdam, Bremerhaven and charged the
lowest prices for bananas destined to Eire and highest to those going to West
Germany. The different prices were not based on different costs: in fact transport
to Eire for which UBC paid itself, cost more than to other countries so that, if
anything, prices might have been: higher there. UBC was also condemned for
including clauses in contracts which distributors which had the effect of
preventing paral-lel imports from country to country for example: UB prohib-ited
the transportation of green (i.e. unripe) bananas; ef-fectively this meant that
bananas could not be transported from one Member State to another since once
Ripened, bananas perish quickly. The ECJ
reduced the fine on UBC from 1 million ECUS to 850 million ECUS
only because the Commission had erred on the separate issue of excessive pricing.
The ECJ a strict approach to price discrimination. The Court held that a
substantial price differential is strong evidence of discrimination in the ab-
sence of objective. Price discrimination is always of in-fringement of Article 86
EEC where the defendant holds a dominant position as in United Brands v Commission
and AKZO as well the definition of the relevant market was made in the case of in
Nederlansche Banden Industrie Mich-elin NV v EC Commission [1985] 1 CMLR 282. The
defence argu-ment that discrimination was forced upon the defendant by the muscle
of a dominant purchaser is generally rejected . The Court, and the Commission lay
great store by the need to avoid artificial division of the Common Market.
Practices that reinforce national boundaries are hence viewed as par-ticularly
serious. A supplier who, having instituted artifi-cial differential pricing in
different Member States seeks to enforce those differential runs to the risk of
large fines. In United Brands the supplier imposed price differen-tials for
supplies of bananas. To prevent entrepreneurs buy-ing bananas in cheap territories
and transporting them to expensive areas and there undercutting the prevailing
price level, the supplier contractually prohibited cross-supplies of green bananas
between the dealers (50% sold cheap in other markets in another fiction brand
banana) in different Member States. The ‘green-bananas” clause prevented cheap
unripe bananas being sold in expensive areas, bananas can’t be transported in a
grown condition. By this clause the sup-plier sought to maintain the
differentials. The Court held the practice to be an abuse of a dominant position.
As a general proposition prices should be related to cost. Thus differentials
should be justified by reference to scale eco-nomics and other savings enjoyed by
the supplier. Discrimi-nation may occur through the application of a single price
to customers who are different and justify different treat-ment. The most common
example of this is found in corrupt item or delivered price system. A dominant
undertaking which adopts price discrimination in a very selective manner with an
intent to exclude a rival by offering very favourable terms to the rival’s
customers but not offering equally fa-vourable terms to normal customers certainly
infringes Arti-cle 86. The offering of excessive low prices to certain categories
of customer, coupled to an exclusionary design, comes unimportant close to
predatory pricing as the ECS-AKZO decisions where predatory pricing is
demonstrate. Such be-haviour is likely to attract heavy financial penalties from
the Commission. Price discrimination is often achieved by means of the grant of
differential (discriminatory) dis-counts. May be defined as the failure to charge
like custom-ers like prices based upon the true cost of the supply. The ECJ has
adapted a strict approach to price discrimination it held that substantial price
differentials are strong evi-dence of discrimination in the absence of objective
justifi-cation . In addition, the price discrimination in the ab-sence of
objective justification ; continually a trespass of Article 86 EEC where the
defendant holds a dominant posi-tion as in UBC and AKZO. The defence argument that
discrimi-nation was forced upon the defendant by the creator of a dominant
purchaser is generally rejected . The ECJ and the Commission protection by the
requirement to avoid unreal disagreement of the Common Market. Practices that
reinforce national boundaries are hence viewed as particularly seri-ous. A
supplier who, having instituted differential prices in different Member States,
seeks to enforce those differen-tials runs the risk of large fines as in UBC the
supplier imposed price differentials for supplies of bananas. To pre-vent
entrepreneurs buying bananas in cheap territories and transporting them to
expensive areas and there undercutting the prevailing price level, the supplier
contractually pro-hibited cross-supplies of green bananas between dealers in
different Member States. The “green bananas” clause pre-vented cheap (unripe)
bananas being sold in expensive areas, bananas can’t be transported in a ripe
state. By this clause the supplier sought to maintain the differentials. The Court
held this practice to be an abuse of a dominant position as a general proposition
prices should be related to cost; thus differentials should be justified by
reference to scale eco-nomics and other savings enjoyed by the supplier. Discrimi-
nation may occur through the application of a single price to customers who are
different and justify different treat-ment. The most common example of this is
found when deliv-ered price system. A dominant undertaking which adopts price
discrimination in a very selective manner with an intent to exclude a rival by
offering very favourable terms to the ri-val’s customers but not offering equally
favourable terms to normal customers almost certainly infringe Article 86. The
offering of excessively low prices to certain categories of customer, coupled to
an exclusionary design, comes danger-ously to predatory pricing as the ECS-AKZO
decision, such behaviour is likely to attract heavy financial penalties from the
Commission. So Predatory Pricing is usually defined in terms of dominant firm
selling below cost. It is prohib-ited because of the concern that the firm
sacrifices present revenues for the purpose of driving rivals from the market-ing
then recouping its losses through higher profits earned in the absence of
competition. Predatory below cost pricing may be used to deter potential entrants
from the market. The cost level is generally viewed as an important element in
analysis because it is assumed that there can be few eco-nomic explanations for
selling at a loss other than a preda-tory design on competitors. A price above
cost can exert similar predatory or exclusionary effects and competition
authorities generally accept that in exceptional circum-stances and above cost but
excessively low price may be anticompetitive if a predatory intention on the part
of the defendant can be proven. In cases of above cost pricing the issue is
complicated by the difficulty of the differentiat-ing a predatory price from a
highly competitive price by a dominant concern. In EEC Law Complains of predatory
pricing are uncommon and the leading decision is that in ECS-AKZO where the
Commission imposes a fine of 10m ECU on AKZO for its predatory behaviour in
respect of ECS. Article 86(a) gives as one of the illustrations of an abuse
‘directly or selling prices or other unfair trading conditions: In [Re UB company
Case 27/76 UB v. Commission (1978) ECR 207 (1978) 1 CMLR 429].
The Commission again imposed a fine for excessive pricing and again its decision
was quashed by the ECJ because the Commission had failed to make out a clear case.
In no sense did the ECJ suggest that excessive pricing could be caught by Article
86. Rather said: ‘charging a price which is ex-cessive because it has not
reasonable relation to the eco-nomic value of the product supplied is...an abuse.’
Clearly therefore excessive pricing can amount to an abuse of a dominant position:
The difficulty is to know at what point a price is so high that it is abusive? The
prohibitory nature of the EEC system means that a legal test of excessiveness is
necessary; the impressionistic approach of the Monopolies and Merger Commission
(MMC) could hardly be suitable advis-ing clients on their immunity from fines or
damages actions under Article 86.
The Commission in [UB OJ [1976] L95/1, [1976] 1CMLR D28], inferred that the price
of bananas in Germany was too high by looking at the price charge in Ireland and
concluded: that since UBC could charge a low price in Ireland and still make a
Profit, it Most follows that the highest price charged in Germany was excessive.
The ECJ overturned the Commission on the grounds that was excessive the ECJ
consid-ered that the Commission had at least to require UBC to pro-duce
particulars of all the constituent elements of its pro-duction costs. The burden
was on the Commission to prove that UBC was charging unfair prices. Having
undertaken a cost analysis, the ECJ said that the Question to be ask is: “Whether
the difference bet the costs actually incurred and the price actually charged is
excessive? and if the answer to this Question: is in the affirmative.-“ To
consider whether a price has been charged which is either unfair in itself or when
compared to other competing products. The ECJ accepted that it may be extremely
difficult to apportion costs to particular products, but concluded that there were
not such difficulties in the case of the market for bananas. The test actually
suggested by the ECJ in UBC calls either for a value judgement (as to whether a
price might be con-sidered unfair in itself); or else involves an application of
the fictitious competitive price of a particular price. Both approaches obviously
involve difficulties and lack sci-entific precision but this is of course where
the EEC law has embarked, also is unclear: Whether all findings of ex-cessive
pricing must be supported by extensive cost analy-sis?. The ECJ in UB suggested
that there might be other ways of proving that a price is excessive. Apart from UB
the in-stances of excessive pricing, dealt with the ECJ and the Commission have
tended to arise in the context of the supply of services rather than of goods and
in situations where the suppliers enjoys either a statutory or de facto monopoly.
Article 86 would also catch discrimination which produces secondary line injury as
is clear from part (c); in UB identified secondary line injury, though the ECJ
overturned the Commission decision in the case .
Article 86 may apply where a joint venture reinforces the dominance of the
parties on the market or where it artifi-cially creates a dominant undertaking
The Court in respect of Mergers has stated that it is an abuse if the merger leads
to an “...alteration to the sup-ply structure that seriously endangers the
consumer’s free-dom of action on the market...” .In Hoffman La Roche v Commission
the Commission accept cost justification based upon such statistics and data as
the supplier can muster .
In UB the Commission and the Court found that UB was domi-nant in market where it
was unsuccessfully fighting a price war with its chief competitor and had made
losses in four out of the last five years. In Continental Can the Court in-sist on
the Commission analysis of firm’s market power in two steps:
1-it should define the relevant market and
2-then it should asses the firm’s dominance therein
Markets have been even more narrowly defined also from the demand side: in UB the
Court upheld the Commission’s choice of bananas in the relevant market. For the
banana to be re-garded as forming a market which is sufficiently differenti-ated
from the other fruit markets it must be possible for it to be singled out by such
special factors distinguishing it form other fruits that it is only to a limited
extent inter-changeable with them and is only expose to their competition in a way
that is hardly perceptible: it confirmed, that mar-ket oranges were not
interchangeable with bananas and apples markets only to a limited extent, despite
evidence of the easing of banana prices and a reduction in the quantities sold
during the season for summer fruit and oranges, perhaps because Of a finding in a
report by the FAO in 1975 “That price of oranges in all cases had no significant
impact on banana consumption”
the United Brands Case in which the Commission, and later the Court, found that a
New York enterprise, together with the United Brands and together with the United
Brands Conti-nental of Rotterdam and its other subsidiary Company formed a single
economic unit. The only relevant reference to the economical unit theory to the
case was the Commission’s statement that the subsidiaries were under the control
of the parent company and “and do not possess any legal auton-omy”. Implicating
that a Geographical relevant Markets must be defined geographically when assessing
an undertaking’s economic and commercial power is necessary to appreciate the
geographical of the market upon which it operates in order to determine who are
its competitors. As ECJ said in United Brands: “It went to describe the geographic
market as ” an area where the objective conditions of competition. . . must be the
same for all traders.- This meant that in the United Brands Case the ECJ excluded
from the market under consid-eration the United Kingdom, France and Italy for in
those countries State Regulations applied to the importer and or marketing of
bananas which resulted in preferential treat-ment for bananas from certain
sources. The relevant geo-graphic market was therefore held to comprise West
Germany, Ireland, Denmark and the Benelux countries despite the dif-ferences
between them in custom tariff, consumer habits, and commercial patterns. The
important point was that in those six countries the market was free and
unregulated so that the competitive conditions were the same for all producers.
Similarly in Tetra Park the Commission defined the whole Community as the relevant
geographic market despite market differences in consumer preferences between
Member States. Division of market into geographically distinct areas is of a
greater significance in the EEC as a result of transport and related costs and the
physical difficulties of exporting as well as discrimination against imports by
national au-thorities and disregard to third countries i.e. UBC case, here United
Brands trade-in all Member States yet the Euro-pean Commission, upheld by the
European Court of Justice felt it necessary to exclude France, Italy and the UK
from its market assessment, as the result of import arrangements and other special
circumstances operative in relation to ba-nanas in those countries. Similarly in:
[Sugar [1973] C.M.R.L D65] the Commission took into account differing transport
costs in defining the market and in GEMA the Commission confined to Germany as
they were effectively pre-vented from joining performing right societies abroad.
The United Brands had charged different prices for identical goods in each Member
State and had admitted that even on its lowest prices it had made reasonable
profits. The European Commission held that the UB had infringed Article 86, by
charging varying price and amount unfair tariff for its ba-nanas sold under the
Chiquita Brand name; in reaching its later conclusion the Commission noted that
branded bananas were sold at a higher price even though only slightly supe-rior
quality and the unbranded bananas were supplied more cheaply and at a profit by
United brands competitor’s. Nei-ther of these factors can sensibly be regarded as
strong evidence of profitable and the ECJ after declaring the Com-mission’s
analysis incompetent substituted with its own trial.
Inside the UB Case the Court using Article 86 gives an exam-ple of abuse of
dominant position:
1- exploitative abuses (taking direct advantage of market power to get supra-
competitive prices or other benefits)
2- certain kinds of anti competitive behaviour:(as discrimi-nation)
3- Continental Can/Hoffman la Roche: The Court held other kinds of anti-
competitive behaviour by dominant firms were unlawful
A- Mergers and the incipient predation theory
B- refusal to supply raw materials to competitors
C- rebates (given only to buyers dealing exclusively with the dominant firms)
D- H.L.R. the Court base on Article 3(f) of the Treaty gave a definition
covering all forms of anticompetitive behaviour
E- Article 86 (held the Court) prohibits a corporation al-ready dominant from
merging with or acquiring a competi-tor.
The conclusion is that in Article 86: The general concept of abuse is set forth
without further indication: It states that decisive criteria for finding abuse
-any use which is incompatible with the common market is abuse
-it is irrelevant whether the perpetrator of the abuse was aware of the prohibited
nature of his activities
-Any uses of dominant position that objectively can be qualify as abuse is clear.
And adding some complementary comments relating to Article 86:
a) The requisite measure of market control in the defini-tion of dominant
position:
Then OF So as in antitrust rules when ARTICLE 86 is apply IN SITUATIONS to
FOREIGN ELEMENTS
Under Community law -Regulation 17: provides that authori-ties in the Member
States are responsible for administrat-ing domestic legislation on competition and
are competent to determine whether or not the prohibition of article 86 apply but
only until or requiring termination of an in-fringement Article 9(3) of Regulation
17. with regards to: national economic systems in their various countries around
the World. As a Collision a Multinational United Brands (Chiquita bananas)
enterprise abuses of their dominant po-sition anywhere in the World in Central
America exploits and takes the bananas scaping taxation and buying govern-ments,
so the devastation is left in poor countries. This in economical development
clearly emphasises -the interna-tional dimension required for effective
competition policy under the multinationals-and the need for international co-
operation in combating restrictive business practices: as in the Third World the
effects of trade for example of ba-nanas in the planet.
When a Pertinent requirements of Article 86 and an impo-sition of a fined on non
community enterprises (NCES) hav-ing no presence within the Common Market. The
assessment of arrangements with foreign elements should also be under-taken in the
context of a number of Treaties of the Commis-sion with 3rd countries which extend
the Free Trade Area (FTA) of the Common Market to various other states, includ-ing
the EFTA countries. To interrupt -the prevention, re-striction or distortion of
competition within the Common Market at EC level Article 86 since lay down the EEC
anti-trust rules forming the anatomy of rules applying to under-takings, they are
applied to non community enterprises (NCES) or (NCE) and arrangements whole or
partly carried outside the territorial boundaries of the Common Market. Therefore
since this -relations on this basis are how the application of competition rules
reach out an extraterrito-rial application; to understand this it is necessary to
deal with the general role of competition policy examples are Article 3(f) and
Article 2. The object or role of pol-icy of competition policy varies of
situations examples are cases with foreign elements and solution to issues con-
nected with the extraterritorial application of community competition rules And
-Article 86 where the requisite meas-ure of market control in the definition of
Dominant Posi-tion. Commission narrow definitions or sources of limita-tion are
the limits of law within the European Community and international law imposing the
extraterritorial appli-cation of community law. And markets territorial scope
deals with jurisdiction where customary international law provides the only
restraint upon the conduct of nations in the area of extraterritorial application
of antitrust law or competition law.
How far a sovereign state is entitled under international law to give
extraterritorial application to its antitrust laws and after that one could look
at the special position in this respect of the Commission, which is not a
Sovereign State but a Community of Sovereign States to which those in-dividual
states have delegated certain aspects of their sov-ereignty?
If the answer is: yes! as in the recent banana judgement then the sovereignty is
to be found in Treaties related documents and implementing rules and regulations
as GATT, the Lome Convention etc. So then any State has a right to a damage or a
claim to redress? Germany was trying to get this final decision on the banana
judgement, instead in UBC had to pay a fine. Under jurisdiction in respect to
crime; exam-ple: extraterritorial penal jurisdiction. States are also entitled to
claim jurisdiction over offences committed abroad, which merely produce effects in
their territory even though those effects were constituent elements of offence;
Germany want it to be treated as a person, not as a terri-tory. But I think the
debate was concentrate in the objec-tive territorial principle, the debate on the
adequacy of the principle of territoriality as a basis for jurisdiction in
antitrust matters where only effects of offences commit-ted abroad are found
within the territory
Under the territorial application of each nation: the diffi-culty in the
application of the principles of jurisdiction of international law to the
community jurisdiction in anti-trust matters which don’t direct physical harm is
the extent to which the requirement of a “constituent element of the offence,
occurring within the territory can be applied where only economic effects Of the
antitrust offence have taken place within the territory.
The difficulty lies in the application of the objective test of territoriality to
antitrust cases examples are the mean-ing and effects of antitrust crime: the
effects doctrine and economic offences where in this case the law applicable de-
pends on the nature of its public and international law. The rules of
international law are those of private interna-tional law whereby Municipal Courts
commonly refuse to apply certain aspects of a foreign law. At the end in the
common world Community Antitrust law seems difficult to fit into this system
because breaches of rules could be sanctioned by administration (regulatory) or
criminal proceedings and by civil (private) proceedings. Examples are duty free
bananas. The difference in both articles is a degree rather than in kind.
Abuses prohibited under Article 86 are divide into two cate-gories:
-exploitative abuses
-anti competitive abuses
Article 86 various sanctions: administrative sanctions' ex-amples are: fines,
penalty payments as under Regulation 17 article 15/17 the remedies seem to be
criminal or quasi. Also this article can be exercise by the authorities pro-
viding direct effect. An attempt to classify the commis-sion competition rules
within the following categories: pub-lic law, criminal law, administrative law
deems to fail, be-cause of all the elements contains in the law. Provided that a
number of that abuse in United Brands such as:
a) unfair prices
b) unfair trading conditions
c) discriminatory treatment
d) refusal to supply
e) Article 15(4) of Regulation 17 provides that: fines re-sulting from the
proceedings under the Regulation are not criminal in character.
INDEX:
competition law:
Article 3:p3,10,32,38.
Article 85:p5,11,12,14,58,61,63.
Arti-
cle86:p5,7,10,11,12,13,14,15,16,17,20,24,25,27,28,32,35,36,38,41,42,44,45,46,47,48
,49,52,56,61,62,63.
Article 87:p5.
Article90/92:p5,28.
Article 94/95:p6.
Article 228/234:p65.
Form A/B:p56,57.
Joint Ventures:p48.
Vertical agreements:/restraints:p54.
-Article 113: p5.
-Article 228: p5.
-Article 235,238: p5.
OECD:p9.
ECJ:p10,16,18,19,20,53,,54,55,65.
CFI:p42.
Regulation:p26,61,64,65.
FTA/EFTA:p27,62.
ECUS:p43,46.
Treaties:11,65
NCE/NCES:p61,62.
MMC:p46.
GAAT:p65.
FAO:p50.
Third countries:p26.
Cartels:p57.
UBC/UB/chiquita/greenbananaclause:p24,25,27,29,30:Art1(a)(b)(c)(d)ofthedecsion;31,
35,,36,37,38,39,40,41,43,45,46,47,49,50,51,52,53,54,55,57,60,61,62,63.
Hoffman:p13,17,20,21,24,25,27,62.
Continental:p15,30,58,60.
Michelin:p21,22.
AKZO:p21,22,23,31,32,34,44,45,46.
Metro:p22.
Hugin:p24,27,30.
Areeda:p31,34.
Decca:p42.
Boosey/British Gypsum/Napier Brown: p43.
Colombian Coffee: p55.
Germany v. Council: p64.
Tetra:p23,42
ATC:p31,32,33
AVC:p31,32,34.
ECS:p22,23,32.
BBI:p43.
Affect doctrine: p61.
Antitrust:p31,53
bibliography:
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