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Issues in EU competition law

Issues in EU competition law

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Published by Stuart Brooks
University notes on EU competition law - subjects you should be aware of as a basic background.
University notes on EU competition law - subjects you should be aware of as a basic background.

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Categories:Types, Business/Law
Published by: Stuart Brooks on Dec 07, 2011
Copyright:Attribution Non-commercial

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10/02/2013

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3/11/2009 4:11:00 AM
 
Competition law 
Why competition law?
 
Articles 81; restrictive practices- treaty outlawing restrictive practices. If you have two undertaklings or decisions by associations; agreements bymembers OR concerted practices (courses of conduct)
 
 
How far can this be a breach of pracrice in the absence of a  specific or written agreement- how can you read intention into that? 
 
These having object 
or 
effect of prevention, restriction or distottion of competition within the common market 
 
The community dimension- if 
able to foresee with sufficient degree of  probability on the basis of a set of objective factors of law aor fact that the agreement may have in influence, direc or indirect, actual or potential on trade between MS- 
note link to 
dassonville 
through link to common market.
 
There are explanatory notices; where circumstances not having appreciable impact on competition or interstate trade.. wont institute proceeding or fine assume in good faith. See slide 6 week 10.Agregate market share no more than:
 
 
10% if actual.. etc etc see slide 7
 Object or effect? 
Can we balance/ have a rule of reason? What is prohibited conduct?
 
 
Direct or indirect fixing of prices or other conditions. If you have an agreement that prices are going to be fixed; a constraint to 
competition because you can’t compete with lowe 
r prices 
 
 
Agreements to limit or control production, markets, technical development or investment 
 
 
TO share markets or supply to those market 
 
 
To apply dissimilar conditions to similar transactions, creating a competitive disadvantage 
 
 
Supplementary obligastions in contracts 
 Can be horizontal or vertical 
; vertical agreements are more contentious.
 
Basically- horizontal usually less likely to have effect than vertical Does not need to be a formal agreement 
 
 
Concerted practices;
basically companies know about these laws;
 they’re not going to spell it out in order to get caught.
 
o
 
However 
how do we know whether this is a reactionaryprice reduction, or with an external/internal basis.
 
ICI v Commission;
knowingly substituting practical co-operation between the parties for the risks of competition, without being an agreement as such.
o
 
Court accepted that there was a complex set of facts 
involving simultaneous price increases… some made in 
advance. The court accepts that viewed as a whole these reveal progressive co-operation between parties, conduct not spontaneous, advance announcements eliminating large part of risk involved in indipendent change oc condiuct 
 
o
 
The elimination of the rick of unilateral conduct. Listen again- quite confused?
 Consequences of breaches of art 81(2) and (3)
 
Consequences; agreement void 81(2)
 
 
Exception if certain conditions fulfilled and (courage v crehan)
Beer tie agreement… publican being sued for failure to pay, he 
counterclaimed with allegation of loss and damage due to anti-competitive terms in the beer tie agreement- obligations imposed on him to buy beer. He was suffering loss and damage, hence counterclaim 
 
 
HOWEVER; he was party to this agreement!! You can’t rely on 
your own wrong, surely? How does the principle of competition apply here?
 
 
HELD
: it would impair effectiveness of competition law if claim  for damages was available in principle. The fact that he was party to an agreement should in itself be an insuperable barrier-is permissible to have a national rule that would bar you from damages where party bears significant responsibility for distortion of competition.
 
o
 
Where 
one party was significantly more dominant and  therefore imposes anticompetitive terms etc 
 
Manfredi 
case;
 
 
Green paper 2005 and follow up white paper in 2008.Commission taking forward, trying to rationalise;
 
 
Trying to strengthen enforcement and make it easier for those who have suffered to recover their losses 
 Article 81(3)
 
..and article 81(1)
listen. May be decl;ared inapploicable to agreement or category of agreements- block exceptions and excemption for individual agreements 
 
 
excepitions? 
o
 
Must:
contribute to improving production or distribution or promoting technical or economic progress while allowingconsumers a fair share of the resulting benefit. NOTE:
 
 
Not impose restrictions that are nto indispensible to achieving benefit- not too much 
 
 
Not afford iopportunity to eliminate competiion in substantial parts of products in question 
 
 
PREVIOUS ISSUES:
NOTIFICATINO AND EXCEPTION BY THE 
COMMISSION ONLY although…the prohibition hard direct effect,
applied by national courts, the exceptions could not!!!
 
o
 
Therefore 
long complex procedure for indicudual exempt 
 
 
Complex 
and long procedure for individual exemption 
 
 
Comfort letters 
gave some measure of legal certainty
 
 
Block 
exemptions were used more widely- ok if your business falls into the scope, but difficult and anticompetitive itself if you want something different.
 
 
Listen and note slides 19 20. Didn’t listen 
here.
 
Courts now competent to judge not only
prohibition, but also on exemption in 81(3)…
 ENFORCEMENT 
- THE protection of rights of companies have been enshrined in XXXXX. This is one of the most significant issues which have occurred.
 
Whilstleblower leniency schemes. ARGH FORGOT TO RECORD UPTO NOW> ARGH.
 
continued use of dawn raids. Regulation in 2008 on leniencyprocedure to encourage disclosure of informatio
 
reliance on whistle blowers etc 
 
Article 82- abuse of market through your share 
 

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