The Interplay between European

and National Competition Law after

Regulation 1/2003

'United (Should) We Stand?'

Lucio Tome Feteira

Wolters Kluwer
 Table of Contents

Preface xiii

List of Abbreviations xv

CHARTER 1
Introduction 1
1.01 Initial Considerations on the Research Question 1
1.02 Hypothesis and Structure of the Thesis 4
1.03 Methodological Considerations on Comparative Law 12
[A] Introduction 12
[B] Methodology in Comparative Law 12

CHARTER 2
Interplay between European Competition Law and National Competition
Law before Regulation 1/2003 19
2.01 Introduction 19
2.02 The Unanswered Question(s) of Articles 85 and 86 EEC 20
2.03 Effect on Trade between Member States (Inter-State Clause) 23
[A] Role of the Inter-State Clause 23
[B] The Case Law on the Effect on Trade 24
[C] DeMinimis Notice(s) and the Guidelines on the Effect
on Trade Concept 27
2.04 Double Barrier Theory and Walt Wilhelm 29
[A] General Considerations 29
[B] The 'Original' Double Barrier Theory 30
[C] Criticism to the 'Original' Barrier Theory and the Walt
Wilhelm Judgment 32
[D] Aftermath of Walt Wilhelm 37
[E] Assessment of Interplay between ECL and NCL Following
Walter Wilhelm 42

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CHARTER 3
Interplay between European Competition Law and National Competition
Law after Regulation 1/2003 47
3.01 Introduction 47
3.02 The White Paper and the Reform of Regulation 17 47
3.03 Overview of Regulation 1/2003 51
3.04 Interplay between ECL and NCL under Regulation 1/2003 54
[A] The Drafting of Article 3 54
[B] Substantive Consistency under Article 3 56
[C] Procedural Consistency under Regulation 1/2003 (Overview) 60
3.05 Preliminary Reflections on the Function and Structure of Article 3 62
[A] The Classificatory Function of Article 3 62
[B] Structure of Article 3 (2) and the Scope of the Exception 64
[C] Introductory Remarks on Article 3 and National Unfair
Competition Laws 67

CHARTER 4
Unilateral Conduct and Undertaking in European Competition Law 71
4.01 Introduction 71
4.02 Unilateral Conduct under ECL 71
4.03 Undertakings under ECL 79
[A] The Notion of Undertaking and Its Limits under ECL:
FEN1N and SELEX 79
[B] Public Entities as Undertakings and Article 3(2) Sentence 2 84

CHAPTER 5
Economic and Legal Perspectives on Market Power 91
5.01 Introduction 91
5.02 General Relevance and Meaning of Market Power 92
5.03 Market Power from the Economic Perspective 96
[A] Introduction 96
[B] Market Power as Pricing Power (Chicago School) 97
[C] Market Power as Exclusionary Power (Post-Chicago
Contributions) 102
[D] Methods for Measuring of Market Power 105
[E] Final Assessment 106
5.04 Market Power from the Legal Perspective 108
[A] Introduction 108
[B] Concept of Dominance in Article 102 TFEU 110
[1] Ordoliberal Origins 110
[2] United Brands and the Concept of Dominance 112
[3] Special Responsibility of the Dominant Firm 117
[4] Link between Dominance and Abuse 120
fC] Measurement of Market Power 121
5.05 Market Power without Dominance 124

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[A] Introduction 124

[B] Non-dominant Firms and the Prohibition of Abuse of
Dominance 124
[1] The Theory of the Obligatory Trading Partner 124
[2] An Enforcement Gap in Article 102 TFEU? 126
[3] Economic Dependence as an Element of Dominance 127
[C] Narrow Definitions of the Relevant Market and Low Market
Shares 129
5.06 Confronting Economic and Legal Perspectives on Market Power 131
[A] Substantial Market Power and Dominance 131
[B] Non-dominant Firms 134

CHARTER 6
National Provisions on the Abuse of Economic Dependence 137
6.01 Introduction 137
6.02 Historical Note on the Evolution of Competition Law 138
6.03 Abuse of Economic Dependence in Germany ( 20 Paragraph 1
GWB) 143
[A] Origins of 20 Paragraph 1 GWB and Its Amendments 143
[B] Structure of 20 Paragraph 1 GWB 148
[1] Addressees 149
[2] Protected Parties and the Concept of (Economic)
Dependence 150
[a] Assortment-Based Dependence 152
[b] Scarcity-Based Dependence 153
[c] Dependence Arising from a Long-Lasting Business
Relationship 154
[d] Demand-Based Dependence 156
[3] Unlawful Conduct: Unfair Hindrance and Discrimination 158
[C] Ponderation of Interests at Stake (Interessenabwgung) 160
6.04 Abuse of Economic Dependence in France (Article L.420-2 Code
Commerce) 164
[A] Introduction 164
[B] Structure of Article L. 420-2 CCom 166
[1] General Criteria 166
[2] Assessment of Economic Dependence 168
[3] Abuse of Economic Dependence 171
[4] Effect on Competition 172
[5] Assessment of Article L.420-2 CCom 172
6.05 Abuse of Economic Dependence in Italy (Article 9 of Law No.
192 of 18 June 1998) 176
[A] Introduction 176
[B] Scope and Nature of Article 9 of Law No. 192 of 18 June 1998 181

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[C] Article 9 of Law No. 192 of 18 June 1998 in Practice 185

6.06 Abuse of Economic Dependence in the United Kingdom? 187
[A] Introduction 187
[B] Market Studies and Market Investigations 188
[C] Unequal Bargaining Power in English Contract Law 195
[1] Economic Duress 195
[2] Inequality of Bargaining Power 196
[3] Restraint of Trade Doctrine 198
[4] Specific Performance (Denied on Account of Unfairness) 201
[D] Infliction of Unlawful Commercial Damages in English Tort
Law 202
[1] Conspiracy 203
[2] Inducing Breach of Contract 204
[3] Unlawful Interference with Trade 204
[4] Malicious Falsehood and Passing Off 205
[E] Final Assessment 206

CHARTER 7
Unilateral Conduct of Non-dominant Firms 209
7.01 Introduction 209
7.02 Unilateral Conduct of Non-dominant Firms in Germany 210
[A] Introduction 210
[B] Passive Discrimination: 20 Paragraph 2 GWB 211
[C] Hindrance of Small- and Medium-Sized Competitors
( 20 Paragraphs 3-4 GWB) 215
[D] Boycott and Other Restrictive Practices ( 21 GWB) 221
7.03 Unilateral Conduct of Non-dominant Firms in France 226
[A] Introduction 226
[B] Predatory Pricing (Article L. 420-5 CCom) 228
[C] Practices Restrictive of Competition (Article L. 442-6 CCom) 230

CHARTER 8
Competition Issues and Unfair Trading Practices 235
8.01 Introduction 235
8.02 Competitive Issues in the Motor Vehicle Sector 236
8.03 Competitive Issues in the Food and Non-food Supply Chain 241
8.04 Assessment 249

CHARTER 9
Economic Insights on Superior Bargaining Power 251
9.01 Introduction 251
9.02 Economic Insights on Superior Bargaining Power 254
9.03 Post-Chicago Economic Insights on Superior Bargaining Power 257
9.04 Economic Insights on Buyer Power 259
9.05 Evolutionary Economics Insights on Bilateral Bargaining Power 264

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9.06 Economic Insights and Legal Responses to Superior Bargaining

Power 266

CHARTER 10
Diversity and Competition Law 271
10.01 Introduction 271
10.02 Diversity and Competition Policy 273

CHARTER 11
Unilateral Conduct and Unfair Competition Law 277
11.01 Introduction 277
11.02 Interplay between National Unfair Competition and Competition Law 279

CHARTER 12
Unitas in Diversitate in Competition Law 287
12.01 Walt Wilhelm, Regulation 1/2003 and Beyond 287

ANNEX
Table of Correspondence: Gesetz gegen die Wettbewerbsbeschrnkungen 291

Bibliography 297

Index 331

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