CONTENTS

Acknowledgements
Table of European Cases
Table of lnternational Cases
Table of Legislation
Table of European and International Treaties, Conventions and Charters
Bibliography
List of Abbreviations

1. INTRODUCTION TO COMPETITION LAW
1.Central Issues
2.Introduction
3.The Objectives of Competition Law
A.Economic Efficiency
(i) The Maintenance of Effective Competition
(ii) Basic Economic Concepts
(iii) Perfect Competition and Efficiency
(iv) Monopoly
(v) Oligopoly
(vi) Perfect Competition, Monopoly, and Competition in the Real World
(vii) The Concept of Welfare: Total Welfare, Consumer Welfare and Efficiency Trade-offs
(viii) Dynamic Competition
B. Other Objectives of Competition Law
(1) Other Goals for Competition Law?
(ii) Preservation of Liberty and Dispersal of Economic Power
(iii) Protecting Competitors and Fair Competition
(iv) Socio-Political Issues
(v) The EU Dimension
C.Conclusions
4.US law
5.Schools of Competition Analysis
A.The Structure -* Conduct -* Performance Paradigm and the Harvard School
B.The Chicago School
C. Post-Chicago
(i) Game Theory
(ii) Contestable Markets
(iii) Raising Rivais' Costs
(iv) Transaction Cost Economics
(v) Conclusion
D. Other Schools, Theories, and Concepts
(i) Workable Competition
(ii) The Austrian School
(iii) Effective Competition
6. Ordoliberalism
7.EC Competition Law
A. General
B. The Objectives of the European Community and
EC Competition Policy
(í) The Objectives of the European Community
(ii) The Development ofthe Objectives of EC Competition Poilicy
(iii) The 'Modernization' of EC Competition Law and the Consumer Welfare Standard
(iv) Socio-Political or 'Non-Efficiency' Factors and the Relationship of Competition With Other Community Policies
C. The Limits of Competition, Public Services, and Regulation
(i) The Limits of Competition
(ii) Competition and Regulation
D. The New Economy
8.Competition Law and the International Context
9.The Techniques and Tools of Competition Law
10. Market Power, Market Definition, and Barriers to Entry
A. Market Power
B. Market Definition and EC Competition Law
(i) The Importance of Market Definition
(ii) Relevant Market Definition in the Case Law of the Court of justice
(iii) The Commission Notice on the Definition of the Relevant Market for the Purposes of Community Competition Law
(iv) Demand and Supply Substitution
(v) Demand Substitution
(vi) Primary and Secondary Markets (Aftermarkets)
(vii) One Market or Two?
(viii) Two Sided Industries
(ix) Supply Substitution
(x) The Geographic Market
C. Barriers to Entry
(i) The Role of Barriers to Entry
(ii) The Definition of a Barrier to Entry
11. Conclusions
12. Further Reading

2 THE EUROPEAN COMMUNITY AND THE COMPETITION PROVISIONS
1.Central Issues
2.Introduction
3.Introduction to the European Community
A. The European Union and the European Community
B. The Sources of European Community law
(i) Introduction
(ii) The Treaty Establishing the European Community
(iii) The EC Institutions
(iv) Community Acts
(v) The Case Law of the Community Courts
(vi) The General Principies of Community Law
C. A New Legal Order of international Law
(i) Direct Effect
(ii) Supremacy
(iii) Article (Ex Article 177) of the EC Treaty
4. The Competition Provisions
A. General
(i) Article 3(1)(g) of the Treaty
(ii) The Main Treaty Provisions and The Merger Regulation
(iii) Speciai Sectors
B. The Substantive Provisions of the Treaty
(i) Article 81 (Ex Article 85)
(ii) Article 82 (Ex Article 86)
(iii) Articles 86 and 31 (Ex Articles 90 and 37)
C. The Procedural Provisions
(i) Article 83 (Ex Article 87)
(ii) Article 84 (Ex Article 88)
(iii) Article 85 (Ex Artide 89)
D. The Merger Regulation
E. Other Relevant Treaty Provisions
5.The Competition Rules and the European Economic Area
6. Modernization
7. Conclusions
S. Further Reading

3. ARTICLE 81:THE ELEMENTS
Central Issues
2. lntroduction
3.The Text of Article 81
4. The Scheme of Article 81
A.The Three Paragraphs
(i) The Prohibition
(iii) Nullity
(iii) Legal Exception—Declaration of lnapplicability
B. The Consequences of lnfringement
(i) Nullity and Private Proceedings Between the Parties to a Contract
(ii) Investigation, Detection, and Penalties—the Commission
(iii) Investigation, Detection, and Penalties—the National Competition Authorities
(iv) Damages and Other Private Proceedings
C.Burden and Standard of Proof
S. The Interpretation and Application of Article 81 (1)
A. General
B.'Undertaking' and 'Associations of Undertaking'
(i) Every Entity Engaged in an Economic Activity: the Constituem Elements
(ii) The Notion of an Undertaking is a Relative Concept
(iii) The legal Status or Form or the Entity is Immaterial
(iv) Public Bodies and Bodies Performing Public Functions
(v)Employees and Trade Unions
(vi) Single Economic Entity
(vii) Associations of Undertakings
C.The meaning of'Agreement', 'Decision', and 'Concerted Practice'
(i)Introduction
(ii) Agreement
(iii) Decisions by Associatiotis of Undertakings
(iv) Concerted Practices
D. Object or Effect the I'revention, Restriction, or Distortion of Competition
E. An Appreciable Effect on Competition
(i) Volk v. Vervaecke
(ii) Commission Notice on Agreements of Minor Importance which do not Appreciably Restrict Competition under Article 81(1) (DeMinimis)
(iii) Networks of Agreements
(iv) Outgrowing the Notice
(v) The Importance of Market Shares and Hard-core Restraints
(vi) Effect of the Notice
F.An Appreciable Effect on Trade between Member States
(i)Jurisdictional Limit
(ii) The Tests
(iii) Pattern of Trade Test
(iv) An Increase in Trade
(v) Partitioning of the Common Market
(vi) Agreements Operating in One Member State
(vii) Restrictions on Competition and Restrictions on Trade
(viii) Agreements which Appreciably Affect Trade between Member States
(ix) The Relationship between Community and National Law
G.Agreements Required by National Legislation
H.Commission Notices
1.Extraterritoriality
6.Article 81(2)
7.Exclusions
8.Conclusions
9.Further Reading

4. THE RELATIONSHIP BETWEEN ARTICLE 81 (1) AND ARTICLE 81(3) OF THE TREATY
1.Central Issues
2.Introduction and Background
A. Article 81(1) and Article 81(3)
B. Possible Ways of Reconciling Article 81 (1) and 81(3)
C. The Interpretation of'Object or Effect is the Prevention, Restriction, or Distortion of Competition'—the Broad Approach
D. The Drawbacks of a Broad Interpretation of Article 8 1(1): the Need for More Economic Approach?
E.Section 1 of the Sherman Act
F.Modernization
(i) Modernization and Regulation 112003
(ii) The CFI's Judgment in Métropote
G. The Importance of the debate
Article 81(1), Agreements which have as their Object or Effect the Prevention, Restriction, or Distortion of Competition
A.General
B.Object or Effect
(i)Alternative, Not Cumulative, Requirements
(ii)The Object of the Agreement
(iii)The Effect of the Agreement
C.Agreements that restrict Competition by Object
(i) Horizontal Agreements
(ii) Vertical Agreements
(iii) Intellectual Property Licensing Agreements
(iv) Restrictions by Object and 'Hard-Core' Restraints
(v) Object Cases and Appreciability
(vi) A Criticism?
D. Agreements that Restrict Competition by Effect
(i) General
(ii) A Rejection of the Rule of Reason
(iii) The Analytical Framework Set Out by the Commission in the Article 81(3) Guidelines
(iv) Restraints on Inter-Brand Competition: Appraisal of n Agreement in its Legal and Economic Context
(v) Restraints on lntra-Brand Competition
(vi) Ancillary Restraints
(vii) Weighing Anti and Pro-Competitive Effects—Balancing Under Article 81 (1)?
E.Conclusions on the Approach Required Under Article 81 (1) Article 81(3)
A. General
B. The lnterpretation and Application of Article 81(3)
(i) Criterion 1: The Agreement Must lead to an Improvement in the Production or Distribution of Goods or the Promotion of Technical or Economic Progress
(ii) Criterion 2: Allowing Consumers a Fair Share of the Resuking Benefit
(iii) Criterion 3: Indispensable Restrictions
(iv) Criterion 4: The Agreement must not Afford the Parties the Possibility of Eliminating Competition
C. Application in Individual Cases
D. Block Exemptions
(i) General
(ii) Current Block Exemptions
(iii) Block Exemptions are Directly Applicable
(iv) Market Share Thresholds
(v) Opposition Procedure
(vi) Withdrawal of Block Exemptions
(vii) Safe Harbours
E. Unilateral Action and Article 81(3)
F.The Relationship Between Article 81(3) and Article 82
5.Conclusions
6.Further Reading

5. ARTICLE 82: THE ELEMENTS
1.Central Issues
2.Introduction
3.The Text of Article 82
4.The Reform of Article 82
5.The Scheme of Article 82
A.The Prohibition
B.Consequences of lnfringement
(i)Investigation, Fines, and Other Remedies
(ii) Private Action
6. The Interpretation and Application of Article 82
A. The Meaning of One or More Undertakings
(i) General
(ii) Public Bodies and Bodies Performing Public Functions
(iii) One or More Undertakings—Collective Dominance
B. Dominant Position
(i) What is Meant by a 'Dominant Position?
(ii) The Definition of Dominant Position in the Case-law of the ECJ
(iii) Problems with the Definition of Dominant Position
(iv) Effects-based Analysis and the Concept of Dominance
(v) Assessing Dominance
(vi) Super-Dominance
C.A Dominant Position within a Substantial Part of the Common Market
(i). Purpose of the requirernent
(ii) Meaning of a Substantial Part of the Common Market
(iii) Relevance of Volume ofProduction
(iv) A Member State is Likely to be a Substantial Part of the Common Market
(v) Transport Cases
D. The Meaning of Abuse
(i) Introduction
(ii) Exploitative and Exclusionary (Anti-competitive) Abuses
(iii) Categories of Abuse are not Mutually Exclusive
(iv) The Broad Nature of the Concept of Abuse
(v) Exclusionary Abuses: Distinguishing Competition on the Merits from Exclusionary Behaviour
E.An Effect on Trade Between Member States
(i) General
(ii) Abuse of a Dominant Position Covering Several Member States
(iii) Abuse of a Dominant Position Covering a Single Member State
(iv) Abuse of a Dominant Position Covering only Part of a Member State
(v) Abuses Involving Trade with Third Countries
7. The Relationship Between Article 82 and Article 81
8.Comparison Between Article 82 and Section 2 of the US Sherman Act
9.Conclusions
10.Further Reading

6. ARTICLE 82: ESTABLISHING DOMINANCE
1. Central Issues
2. Introduction
3. Market Definition
A.General
B.The Product Market
(i)Demand Substitution
(ii)Supply Substitution
C.The Geographic Market
D.The Temporal Market
E.The Tetra Pak 11 Case
4.Assessing Market Power
A.General
B.Market Shares in the Case of Single Undertaking Dominance
(i) General
(ii) High Market Shares and the Presumption of Dominance
(iii) Low Market Shares and Dominance
(iv) Market Shares and the Commission Discussion Paper
(v) Problems with the Role of Market Shares in the Assessment of Market Power
C. Market Shares in the Case of Collective Dominance
D. Other Factors lndicating Dominance
(i) General
(ii) Some Leading Cases
(iii) Summary of Other Factors Indicating Dominance
E. Power over Locked-In Customers and on Aftermarkets
F. Buyer Power
G. Dominant Positions in the New Economy
H. Super-Dominance
5. Conclusions
6.Further Reading

7. CONDUCT WHICH CAN BE ABUSE
1.Central Issues
2.introduction
3.Abuse and the Degree of Dominance
4.Dominance and Abuse on Different Markets
5.Exploitative and Exclusionary Pricing Policies
A.General
B.Price Discrimination
(i) What is Price Discrimination?
(ii) Primary Line and Secondary Line Injury
6. Exclusionary Pricing Abuses and Tying
A. Predatory Pricing
(i) General
(ii) Cost Levels
(iii) The Areeda-Turner Test
(iv) Problems with the Areeda-Turner Test
(v) The AKZO Case
(vi) Some Problems with the Criteria Laid Down in AKZO
(vii) The AKZO Test and the reform of Article 82
(viii) Predatory Pricing where Dominance and Abuse are on Different Markets
(ix) Cross-Subsidies, Incremental Costs, and Multi-Product Firms
(x) Recoupment
(xi) Predatory Pricing in New Economy Markets
(xii) The Digital Undertaking
(xiii) Limit Pricing
(xiv) Transformation Costs and Trice' or Margin' Squeezing
B.Selective Low Pricing
C.The Meeting Competition Defence
D.Exclusive Dealing (Single Branding) Contracts
(i) General
E.Discount and Rebate Schemes
(i) General
(ii) Quantity (Volume) Discounts and Loyalty Rebates
(iii) The Cases
F.Reform of the Law on Single Branding Discounts and Rebates
(i)General
(ii)Single Branding and the Discussion Paper
(iii)Rebates and the Discussion Paper: Unconditional and Conditional Rebates
G.Comparison with US Law on Discounts and Rebates under
Section 2 of the Sherman Act
H.Tying
(i)General
(ii)Commercial Reasons for Tying
(iii)Single or Distinct Products
(iv)Lack of Customer Choice
(v)The Case Law
(vi)Mixed Bundling
(vii) Technological Tying and the Microsoft Case
(viii) The Discussion Paper Proposals Refusals to Supply
A. General
B. The Commercial Solvents Case: refusal to Supply in Order to
Exclude Competitors from Ancillary Markets
C. Refusal to Supply in Response to an Attack on the Dominant Undertaking's Commercial lnterests
D.The Refusal to Supply Spare Parts
E.Refusal to Supply and the 'Essential Facilities' Concept
(i)General
(ii)Access to Facilities and Resources
(iii)The Development of the 'Essential Facilities' Doctrine in EC Law
(iv)The European Night Services Case
(v)The Oscar Bronner case
(vi)Refusal to Supply in the Financial lndustry
F.Refusal to Supply and Intellectual Property Rights
(i)General
(ii)The Car Parts Cases
(iii)The Magill Case
(iv)The Ladbroke Case
(v)The IMS Case
G.Interoperability
H.The Essential Facilities Doctrine in US Law
1. Refusal to Supply in the Discussion Paper Other Exclusionary Practices
A.General
B.The Acquisition of lntellectual Property Rights
C.The Misuse of lntellectual Property Rights or other Regulatory Procedures
D. Pursuit of legal Proceedings, Vexatious Litigation, and Enforcing Legal Rights
E. Vertical and Horizontal Integration
F. Strategic Entry Deterrence and Raising Rivais' Costs Exploitative Abuses
A. Unfairly High or Low Pricing
(i) Unfairly High Prices
(ii) Low Prices on the Buying Side
B.Discrimination Contrary to Article 82(c)
(i)General
(ii)The Application of Article 82(c) to Discounts and Rebates
(iii)Article 82(c) and the Transport Sector
(iv)Article 82(c) and Statutory Monopolists
(v)Geographical Price Discrimination
(vi)Delivered Pricing
(vii)Competitive Disadvantage and Article 82(c)
C.Imposing Unfair Trading Conditions and Entering into Restrictive Agreements
D. Inefficiency
10. Export Bans and other Conduct Hindering Inter-Member State Trade
11. Abuse and Collective Dominance
12. Conclusions
13. Further Reading

8. COMPETITION, THE STATE, AND PUBLIC UNDERTAKINGS: ARTICLE 86
Central Issues
2.Introduction
A.General
B.The Limits of Competition Law
C.Some Concepts
(i)Services of General Economic lnterest
(ii)Services of General lnterest
(iii)Public Services
(iv)Universal Service
3.Article 10
4.Article 86
A.The Objectives of Article 86
B.The Format of Article 86
(i)Article 86(1): Prohibition Addressed to Member States
(ii)Article 86(2): Provision Addressed to Undertakings Providing for Limited lmmunity from the Treaty Rules
(iii)Article 86(3): Policing and Legislative Powers of the Commission
C.Article 86(1)
(i)Definitions
(ii)Measures which are Forbidden by Article 86(1)
(iii) Summary of the Measures which Make Abuse Unavoidable or Create a Situation in which the Undertaking is Led to Abuse its Dominant Position
D.Article 86(2)
(i)The Purpose of Article 86(2)
(ii)Undertakings having the Character of a Revenue Producing Monopoly
(iii)Undertakings Entrusted with the Operation of Services of General Economic Interest
(iv) No Effect on Trade Contrary to the lnterests of the Community
E.The Direct Effect of Article 86(1) and (2)
(i)Article 86(1)
(ii)Article 86(2)
F.Article 86(3)
(1)The Ambit of the Provision
(ii)Decisions
(iii)Directives
5.Services of General Economic lnterest and State Aids
6.Services of General (Economic) lnterest and Political and Legal Developments
A.Article l6EC
(i)The Background to Article 16
(ii)Article 16 and its Place in the Treaty
(iii)The Interpretation and Meaning of Article 16
B.Article 36 of the Charter
C.The Commission's 2000 Communication on Services of General lnterest
D.The Commission's Green Paper of 2003
E.The Commission's White Paper of 2004 and Subsequent Developments
7.Conclusion
8.Further Reading

9. DISTRIBUTION AGREEMENTS
1.Central Issues
2.Introduction
A.General
B.Methods of Distribution
(i)Factors Affecting Choice
(ii)Vertical Integration
(iii)Agency
(iv)Distribution through Independent Distributors
C.Competition Rules and Distribution
(i)The Impact of the Competition Rules on Methods of Distribution
(ii)Vertical Integration
(iii)Agency
(iv)Distribution Agreements
3.The Community Approach—An Overview
A.The Background: Single Market Project and Restrictions on Economic Freedom
B.Criticisms of this Approach
C.The New More Economic Approach: The Block Exemption and Reform
D.Methodology
Distribution Agreements and Article 81 (1) of the Treaty
A. General
B. Object or Effect the Prevention, Restriction, or Distortion Of Competition
(i)The Object or Effect
(ii)Vertical Agreements which have as their Object the Prevention, Restriction, or Distortion of Competition
(iii)Agreements which have as their Effect the Prevention, Restriction, or Distortion of Competition
Article 81 (3)
A.General
B.The Old Block Exemptions
C.The Verticals Regulation—Regulation 2790/1999
(i)The Background
(ii)The Recitals
(iii)Article 1—Definitions
(iv)Article 2—The Main Exemption
(v)Article 3—The Market Share Cap
(vi)Article 4—Hard-Core Restrictions
(vii) Article 5—Severable, Non-Exempted Obligations
(viii) Article 6—Withdrawal of the Block Exemption by the Commission
(ix)Article 7—Withdrawal of the Block Exemption by a National Competition Authority (NCA)
(x) Article 8—Regulations to Deal with Networks of Agreements
(xi)Articles 9. 10, and 11 —Market Share, Turnover, Transitional Provisions, and Connected Undertakings
(xii) Article 12—The Old Block Exemptions
(xiii) Article 13 —Commencement and Expiry
D.The Motor Vehicle Distribution Block Exemption
E.Article 81(3)—Individual Assessment
(i)Introduction
(ii)Hard-Core Restraints
(iii)Non-Compete Provisions and Other Restraints Subcontracting Agreements
7.Article 82 and Distribution
8.Conclusions and the Future
9.Further Reading

10. INTELLECTUAL PROPERTY RIGHTS
Central Issues
2.Introduction
A.General
B.Types of intellectual Property Rights
(i)The Nature of intellectual Property Rights
(ii)Patents
(iii)Trade Marks
(iv)Copyright
(v)Designs
(vi)Know-How
(vii)Miscellaneous
C.The Relationship between Intellectual Property Rights and Competition Law
D.Relevant Provisions of the EC Treaty other than the Competition Articles
E.The Case Law of the Court: Existence, Exercise, and the Exhaustion of Rights
3.Exploiting intellectual Property Rights by Licensing
A.General
B.Commercial Considerations in Licenses
(i)General
(ii)Royalties
(iii)Territorial Restrictions on Production: Exclusive and Sole Licences
(iv)Sales Restrictions
(v)Field of Use Restrictions
(vi)Tying and Bundling
(vii) Non-Compete Obligations
(viii) No-Challenge Clauses
(ix)lmprovements
C.Development of Competition Policy towards Licensing of lntellectual Property Rights
(i)General
(ii)The Evolution of the Commission's Policy towards Licensing Agreements
(iii)Exclusivity and Territorial Restrictions in the Case Law of the Court
(iv)Non-Territorial Restraints
(v)The Block Exemptions on Patent Licensing and Know-How Licensing Prior to 1 May 2004
D.The Adoption of the TTBER and the Technology Transfer Guidelines
(i)The Commission's Review Process and the Adoption of the New Measures
(ii)Methodology
(iii)General Principles: Application of Article 81 to Intellectual Property Rights
(iv)Points of General Importance in the Application of Article 81 to Technology Transfer Agreements
4.Regulation 772/2004, the Technology Transfer Block Exemption
A.General
B.The Scheme of the TTBER
C.Principal Features of the TTBER
D.Scope of the TTBER
(i)Agreements to which the TTBER May Apply
(ii)Relationship with other Block Exemptions
E.Safe Harbour: The Market Share Thresholds
(i)The Market Share Thresholds
(ii)Market Definition
(iii)Market Shares
(iv)The Distinction between Competitors and Non-Competitors (Competing and Non-Competing Undertakings)
(v)Non-Competitors which Subsequently become Competitors
F.Hard-Core Restrictions
(i)General
(ii)Agreements between Competing Undertakings
(iii)Agreements between Non-Competing Undertakings
G.Excluded Restrictions
(i)lntroduction
(ii)lmprovements
(iii)No Challenge Clauses
(iv)Limitations on Technology Exploitation or R & D
H.Withdrawal and Disapplication of the Block Exemption
(i)Withdrawal
ii)Disapplication
1.Duration of the Exemption
The Application of Article 81 to Agreements Failing
Outside the TTBER
A.General Principles
(i)Technology Transfer Agreements Outside the TTBER
(ii)No Presumption of lllegality
(iii)The Second Safe Harbour
(iv)The Approach to the Analysis of Individual Agreements
(v)Relevant Factors
B.The Application of theTTBER and the Guidelines to Specific Provisions
(i)Provisions not Generally Restrictive of Article 81 (1)
(ii)Royalty Obligations
(iii)Exclusive and Sole Licences
(iv)Sales Restrictions
(v)Output Restrictions
(vi)Field of Use Restrictions
(vii)Captive Use Pestrictions
(viii) Tying and Bundling
(ix)Non-Compete Obligations
(x)No-Challenge Clauses
(xi)lmprovement
(xii) Settlement and Non-Assertion Agreements
C.Technology Poois
Trade Mark Licences
A.General
B.The Catnpari Decision
C.The Moosehead/Whitbread Decision
D.The Current Position
Trade Mark Delimitation Agreements
Copyright Licences other than Software Licences
A.General
B.Performance Copyright
Software Licences and Interoperability
The Application of Article 82 to Intellectual Property Rights
Conclusions
Further Reading

11. CARTELS AND OLIGOPOLY
1.Central Issues
2.Introduction
A.Cartels and Oligopoly
B.Explicit and Tacit Collusion
(1)Cartels and Tacit Collusion
(ii)Tacit Collusion, Coordinated Effects and an Oligopolistic Market
(iii)Unilateral (or Non-Coordinated) Effects
C.Competition Law and Collusion (Explicit and Tacit)
3.Cartels
A.Introduction
B.Scope of Article 81
(i)Article 81(1)
(ii)Establishing a Breach of Article 81(l)
(iii)Article 81(3)
C.Price Fixing, Restrictions on Output, Market Sharing, and Collusive Tendering
(i)General
(ii)Article 81 (1)
(iii)Article 81(3)
D.Restrictions on Non-Price Trading Conditions, Advertising, and Promotion and Promotion and Information Sharing Agreements
(i)General
(ii)Restrictions on Non-Price Trading Conditions
(iii)Restrictions on Advertising and Promotion
(iv)Information Sharing Agreements
4.Oligopoly
A.Oligopoly and Article 81
(i)The Oligopoly Problem
(ii)Tacit Collusion and Concerted Practices
(iii)Concerted Practices and Unilateral Price Announcements in Advance
B.Oligopoly and Article 82
(i)'One or More Undertakings'
(ii)Abuse of a Collective Dominant Position
(iii)Remedies and Fines
(iv)Conclusions
C. Alternative Methods for Dealing with Oligopolistic Markets under EC Law
(i) Merger Regulation
(ii) Sector Inquiries
(iii) Cartels and Other Agreements
5. Conclusions
6.Further Reading

12. MERGERS
Central Issues
2.Introduction
A.What is a Merger?
B.The Purposes of Merger Control
(i)The Motives for, and Advantages of, a Merger
(ii)The Adverse Consequence of Mergers
C.The History of the European Merger Control
(i)The Initial Lacuna
(ii)The Drive for Merger Control at the Community Level
(iii)The Catalyst for the ECMR
(iv)The Original EC Merger Control Regulation—Council Regulation (EEC) 4064/89
(v)The 1996 Green Paper and Council Regulation (EC) 1310197
(vi)The 2001 Green Paper
(vii) The Current Merger Control Regulation, Council Regulation (EC) 139/2004
(viii) The Future
D.Scheme of the ECMR
3.Jurisdiction
A.Concentrations
(i)Definition
(ii)Joint Ventures
(iii)Article 3(5)
(iv)Abandonment of a Concentration
B.Community Dimension
(i)A Bright Line jurisdictional Test
(ii)Article 1(2)
(iii)The 1996 Green Paper
(iv)Article 1(3) of the ECMR
(v)Review of the Thresholds
(vi)Concentrations, Undertakings Concerried, and ]Calculation of Turnover
C.Concentrations with a Community Dimension: A One-Stop Shop?
(1)Exclusive Competence of the Commission under the ECMR
(ii)Case Allocation
(iii)Article 9—Distinct Markets
(iv)Article 4(4) Request for Referral to a National Competition Authority
(v)Article 21 (4)--Legitimate lnterests
(vi)Article 296 of the EC Treaty—Essential Interests of Security
(vii)Breach of Article 21
D.Concentrations without a Community Dimension
(i)National Law Applies
(ii)Joint Ventures
(iii)Article 22, Referrals to the Commission
(iv)Article 4(5), Request for a Referral to the Commission
E.A Residual Role for Articles 81 and 82 of the Treaty
(i)The Relevance of Articles 81 and 82 of the Treaty
(ii)Application in the National Courts
(iii)The Commission and National Competition Authorities Procedure
A.Notification
B.Pre-Notification Reasoned Submissions
(i)Background
(ii)Article 4(4), Request for Referral to a National Competition Authority
(iii)Article 4(5), Request for a Referral to the Commission
(iv)Notice on Case Aliocation
(v)Review
C.Suspension
D.Phase 1 Investigation
(i)Article 6(1)(a)
(ii)Article 6(1)(b)
(iii)Article 6(1)(c)
(iv)Article 10(6)
E.Phasell
F.Conduct of Merger lnvestigations
Substantive Appraisal of Concentrations under the EC Merger Regulation
A.Background
B.Reform and the New Substantive Test
C.Burden and Standard of Proof and Counterfactual
D.A Significant lmpediment to Effective Competition, in Particular by the Creation or Strengthening of a Dominant Position
(i)General
(ii)Market Deflnition
(iii)Competitive Assessment of Horizontal Mergers
(iv)Countervailing Buyer Power
(v)Entry Analysis and Barriers to Entry
(vi)Efflciencies
(vii) The Failing Firm Defence or Rescue Mergers
(viii) Competitive Assessment of Non-Horizontal Mergers
(ix)Industrial, Social, and other Policy
E.Article 2(4), (5),JointVentures
F.Restrictions Directly Related and Necessary to the Concentration
G.Commitments or Remedies
(i)Legal Basis and Time Periods
(ii)The Commission's Notice on Remedies Acceptable under the ECMR
(iii)Types of Commitments
(iv)Structural Remedies: Divestiture
(v)Other Remedies: Access Remedies, Behavioural Commitments and 'Remedy Packages'
(vi)Other Cases
(vii) Breach of a Condition or Obligations
6.ECMR Statistics
7.Appeals
8.International Issues
A.The Long Arm of the ECMR
B.Reciprocity
9.Conclusions
10.Further Reading

13. JOINT VENTURES AND OTHER BENEFICIAL HORIZONTAL ARRANGEMENTS
1.Central Issues
2.Introduction
3.Joint Ventures
A.What is a joint Venture?
B.Competition Concerns in Respect of joint Ventures
C.Joint Ventures and the Merger Regulation
D.The Commission's Approach to the Assessment of Joint Ventures under Article 81 before 2000
(i)General
(ii)The Development of the Commission's Policy towards the Application of Article 81 to Joint Ventures
(iii) The 1993 Notice on the Assessment of Cooperative Joint Ventures
(iv)The Application of Article 81 (1) and (3) to Joint Ventures after 1993: Some Examples
Research and Development Agreements, Specialization
Agreements, and the 1985 Block Exemptions
A.General
B.Specialization Agreements
C.Research and Development Agreements
The Assessment of Horizontal Cooperation Agreements in the Light of the Commission Guidelines and of Block Exemptions 2658/2000 and 2659/2000
A.General
B.The Policy of the Horizontal Guidelines
C.Research and Development Agreements
(i)General
(ii)Market Definition and Market Shares
(iii)Substantive Assessment According to the Guidelines
(iv)The Block Exemption Regulation on R&D Agreements, Regulation 2659/2000
D.Production Agreements
(i)The Guidelines
(ii)The Block Exemption Regulation on Specialization Agreements, Regulation 2658/2000
E.Purchasing Agreements
F.Commercialization Agreements
(i)General
(ii)The Joint Selling of Football Rights
G.Standardization Agreements
H.Environmental Agreements
1.Agreements in Particular Sectors
Conclusions
Further Reading

14. PUBLIC ENFORCEMENT BY THE COMMISSION AND THE NATIONAL COMPETITION AUTHORITIES OF THE ANTITRUST PROVISIONS
1.Central Issues
2.Introduction
3.The OId Enforcement Regime Set Up by Regulation 17
4.Modernization
A.The Reasons for Modernization
B.The Proposals in the White Paper
C.The Modernization Package
(i)Regulation 1/2003, the New lmplementing Regulation and the Modernization Notices
(ii)Regulation 1/2003
(iii)Regulation 773/2004
(iv)The Modernization Notices
5.The European Competition Network
6.Enforcement by the Commission
A.General
(i)The Broad Powers of the Commission
(ii)Findings of lnapplicability and Guidance Letters
(iii)The Initiation of Proceedings
B.Fact-Finding by the Commission
(i)General
(ii)Article 18 Requests for Information
(iii)Article 20 Inspections
(iv)Inspectioris on Private Premises under Article 21
(v)The Power to Take Statements
(vi)The Right not to Incriminate Oneself
(vii)Legal Privilege
C.The Second Stage of the Procedure
(i)General: The Right to be Heard
(ii)The Statement of Objections
(iii)The Hearing Officer
(iv)Access to the File
(v)The Oral Hearing
D.Commission Decisions
(1)General
(ii)Final Decisions
(iii)Procedural Decisions
(iv)Interim Measures
E.Fines and Periodic Penalty Payments
(i)General
(ii)Fines for Procedural lnfringements
(iii)Periodic Penalty Payments
(iv)Fines for Substantive lnfringements
F.Informal Settlements
(i)General
G.Sector inquiries
Proceedings before the Court of justice
A.Judicial Review
(i)General
(ii)Article 230 EC
(iii)Locus Standi—Who can bring an Action?
(iv)Which Acts can be Challenged?
(v)The Grounds of Review
(vi)The Effects of Annulment
(vii)Appeals against Penalties: Article 229 EC
(viii) Appeals from the Court of First Instance to the Court of justice
(ix)Interim Measures by the Court under Article 242 EC
B.Actions for Damages under Article 288 EC
Enforcement by the National Competition Authorities within the
European Competition Network
A.General
B.Division of Work
(i)Case Allocation—which Authority is Well Placed to deal with a Case?
(ii)Transfer of information
(iii)Leniency Applications
C.Consistent Application of Articles 81 and 82
(i)General
(ii)Mechanism of Cooperation
D.EC and National Competition Law
The Relationship between EC and National Competition Law Sanctions against Individuals
Complaints
A.General
B.Where to Complain
C.Standing
D.The Procedure
E.The Obligations of the Commission
F.Rejection of the Complaint
(i)introduction
(ii)The Community interest
(iii)Allegations not Substantiated
(iv)investigation by Another Competition Authority
(v)The Commission is Obliged to make a Formal Rejection of the Complaint
G.Acting on a Complaint
H.Judicial Review Proceedings
(i)An Omission to Act
(ii)Review of Acts
1.Complaints and the Merger Regulation
12. Conclusions
13. Further Reading

15. PROCEEDINGS IN THE NATIONAL COURTS
1.Central Issues
2.introduction
A.General
B.Direct Effect and the Principle of National Procedural Autonomy
C.A Paucity of Antitrust Litigation in Europe
D.Reguiation 1/2003, the 2005 Green Paper and Encouragement of Private Actions
E.Uniform and Concurrent Application ofArticles 81 and 82
(i)Cooperation between the Commission and Nationai Courts
(ii)judgments Contrary to Decisions of the Commission
F.Conclusion
3.The Enforceability of Agreements lnfringing Articles 81 or 82
A.Article 81
(i)The Sanction of Nuility
(ii)Severance
(iii)Nuility and lIlegality
(iv)Transient Nullity
B.Article 82
(i)Void and Unenforceable?
(ii)Severance
(iii)Illegality
C.Conclusions
4.Remedies: Damages Actions and Injunctions
A.Damages
(i)A Community Right to Damages
(ii)Damages Claims in the English Courts
(iii)Damages Claims in Other Member States
(iv)Damages Claims in the US
(v)Conclusions and Issues Raised in the Green Paper
B.Interim Injunctions
(i)General
(ii)A Community Right to an Injunction
(iii)The Position in English Law
5.Conclusions
6.Further Reading

16. EXTRATERRITORIALITY, INTERNATIONAL ASPECTS, AND GLOBALIZATION
1.Central Issues
2.Introduction
3.The Position in US Law
A.General
B.The Effects Doctrine
C.Enforcement and the Reactions of Other States
D.Foreign Plaintiffs in US Courts
E.Discovery in US Courts
F.The Effects Doctrine and Foreign Conduct Affecting Exports
4.International Law
5.The Position in EC Law
A.General
B.The vyestuffs Case
C.The Woodpulp Case
D.The Merger Regulation
(i)The Terms of the Merger Regulation
(ii)The Gencor Case
(iii)The Boeing/McDonnell Douglas Case
(iv)The GE/Honeywetl Case
6.International Cooperation
A.General
B.Bilateral Agreements
(i)The EC-US Cooperation Agreement
(ii) Other Cooperation Agreements
C. Multilateral Cooperation
(i) General
(ii) UNCTAD and the OECD
(iii) The WTO
(iv) The International Competition Network
(v) A Global Competition Law Regime?
7. Conclusions
8.Further Reading
Addendum on the Council meeting of june 2007
Index