The EU law of competition/

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Autores adicionais: FAULL, Jonathan ; Editor | NIKPAY, Ali ; Editor
Motivo da edição:3. ed. Publicado por : Oxford University Press, (Nova York:) Detalhes físicos: 2134 p. ISBN:9780199665099. Ano: 2014 Tipo de Material: Livros
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List of Abbreviations
Tables of Court ofJustice and the General Court ofthe European Union Cases
Tables ofEuropean Commission Decisions
Table ofNationaland Other Cases
Table ofEU/EC Treaties
Tables ofEU/ECLegislation
Tables ofEU/ECNotices, Guidelines and Other Informal Texts
Table ofNational Legislation
Table ofinternational Treaties

1.The Economics of Competition Luc Peeperkorn and Vincent Verouden
B. Structure, Conduct, Performance
(1) Early Developments
(2) The Harvard School
(3) The Chicago Schoo
(4) More Recent Developments
C. Static Welfare Analysis of Market Power
(1) Introduction
(2) Basic Microeconomic Concepts
(a) ConsumerSurpius
(b) Production Costs
(c) Short-Run Production Costs
(d) Profit Maximization
(e) Long-Run Production Costs
(f) Economies of Scale and Minimum Efflcient Scale
(g) Entry Barriers
(h) Contestabiity
(3) Perfect Competition
(a) lheModel
(b) lhe Outcome
(4) Monopoly
(a) The Model
(b) The Outcome
(5) Oligopoly
(a) Introduction
(b) Gamelheory
(c) The Scope for Coilusion Illustratcd with the Prisoner's Dilemma
D. Dynamic Welfare Analysis ofMarket Power
(1) Innovation and Welfare
(2) Different Views
(3) Some Empirical Results
(4) lhe 'New Economy'
(5) Some Concluding Remarks
E. Market Definition
(1) Product Market Definition
(a) Demand-Side Substitution
(b) TheSSNIPTest
(c) Elasticity Concepts and the Diversion Ratio
(d) Supply-Side Substitution
(2) lhe Relevant Geographic Market
(a) Demand-Side Substitution
(b) Supply-Side Substitution
(3) Specific Issues in the Context ofMarket Definition
(a) Chains ofSubstitution
(b) Price Discrimination
(c) Captive Production
(4) Further Considerations
(a) Market Definition in Practice
(b) Defining the Market: Not an End in Itself
E Market Power and Dominance
(1) Market Power
(a) Concept
(b) Identification of (Static) Market Power
(2) Dominance
(a) Single Dominance
(b) Coilective Dominance
(3) Enhancing Market Power
(a) Merger with a Competitor: Unilateral vs Coordinated Effects
(b) Exclusionary Strategies
G. Empírica! Methods for Market Definition and the Assessmerit
of Market Power
(1) Analysis of Prices and Price Movements
(a) Price Correlation Analysis
(b) Extension: Stationarity/Co-Integration
(2) Analysis ofPrice Elasticities ofDemand
(3) Critical Loss Analysis
(4) UPP
(5) Event Analysis
(6) Assessment Methods Relating Price to Market Structure
(a) Price Concentration Analysis
(b) Direct Evaluation ofCompetitive Constraints
(7) Analysis ofBidding Data
(8) Merger Simulation
2.The Enforcement System under Regulation 1/2003
EIdy De Smjrer and Ailsa Sinclair
A.Direct Application of Articles 101 and 102
(1) Introduction
(2) The Aims and Resuks ofthe System Change
(a) Increased Application ofArticles 101 and 102 at Member State Leve!
(b) The Commission's Focus on Enforcement
(3) Self-assessment and Legal Certainty
(4) lhe Direct Effect ofArticles 101 and 102
(5) Burden and Standard ofProof
B. The Relationship Between EU Competition Law and National
Competition Law
(1) Introduction
(2) Article 3(1): lhe Obligation to ApplyArticles 101 and 102
(a) Scope of Article 3(1)
(b) Primary Functions ofArticle 3(1)
(3) The Convergence Rule ofArticle 3(2)
(4) The Legal Consequences oflnfringingArticle 3(1) and (2)
(5) Article 3 and the Primacy Rale
(6) Exceptions to Article 3
(a) National Competition Laws
(b) National Laws Implementing EU Law Directives
(c) Member State Measures Covered by Article 106
(d) National Merger Control Laws
(e) Criminal Sanctions on Natural Persons
C. Powers and Decisions ofNational Competition Authorities
(1) Introduction
(2) The NCA
(3) The Decisions ofan NCA
(a) Scope of Article 5
(b) The Decisions Listed in Article 5
(4) Triggering a Decision by an NCA
(a) The NCAActs on its Own Initiative or on a Compiaint
(b) National Notification Systems
D. Commission Powers and Decisions
(1) Introduction
(2) Article 7: Finding and Termination oflnfringements
(a) lhe Power to Find Infringements
(b) lhe Power to Impose Remedies
(i) General PrincipIes
(ii) Structural and Behavioura! Remedies
(iii) Break-ups
(c) Complaints
(3) Article 8: Iriterim Measures
(4) Article 9: Commirments
(a) Introduction
(b)The Nature of Arricle 9 Decisions
(e) The Purpose ofArtic!e 9 Decisions
(d) The Procedure for Adopting Article 9 Decisions
(e) Adoption ofthe Decision and Reopening of the Proceedings
(f) lhe Scope for Legal Chailenge
(5) Article 10: Finding oflnapplicability
(a) Introduction
(b) The Nature and Purpose ofArticle 10 Decisions
(c)The Legal Effects ofArticle 10 Decisions
(i) The Relationship BetweenArticles 9 and 10
E. Cooperation Between Enforcers
(1) Introduction
(2) Cooperationwithin the ECN
(a) lhe Sharing ofWork Amongst the Competition Authorities
(b) An NCA's Request co Another NCA co Carry Out an Investigarion
(c) Exchange of Information and lts Use in Evidence
(i) Exchange of Information wichin the ECN
(z) Empowering ECN Members to Exchange Information
(ii) AiowingECNMembers to Exchange Information
(iii) ExchangingInfiïrnation Voluntarily Submitted by a Lenieny Applicant
(ii) lhe Use of the Exchanged Informacion in Evidence
The Relatiõn Betu'een Article 12 and the National Law
Provisions Prohibiting NCAsfiom Divaiging Confidential Information
(ii) A Wider Urnbrela for the Protection ofConfidentiallnformation
(iii) lhe Use in Evidence of the Information Exchanged within the ECNT
The General Princples ofEULaw
(ii) Information Exchanged 6'an Only Be Used in Evidencefor the
Application ofEU ('ompetition Rules
(iii) Information Exchanged Can Only Be Used in Evidence in
Respecr ofthe SubjecrMatterfor Which it was Collected
(iv) lhe Limitations With Regard to the Use oflnformation in
Evidente to Impose Sanctions on Natural Persons
(v) Experience with Article 12
(d) lhe Obligarion of Professional Secrecy and the Need co
Disclose Information 2.192
(i) Which Information is Covered by Professional Secrecy?
(i)The Wide Coverage ofProfessional Secrecy
(ii) Specific Sub-Catego7y Within the Wider Concept of
Professional Secrecy: Business Secrets and Other
Confidential Information
(iii) Business Secrets
(iv) Other Confidential Information
(ii) lhe Disclosure oflnformation Acquired or Exchanged
Pursuanr to Regulation 1/2003
(é) Disclosure Necessaiy to Prove an Jnfringement of
Article 101 or 102
(iii) Disclosure in granting access to lhe file
Access to the FileJbr the Addressee ofa Statement ofObjections
(ii) Access to Information by Other Parties with Legití mate Interest,
in Particular Complainants
(3) CoherentApplicarion within the ECN
(b) Information underArtide 11 (3)
(e)The Procedu rei nArticle 11 (4)
(i)The Scope oftheArticle 11(4) Procedure
(ii) The Article 11 (4) Process and irs Objective
(iii) The Legal Consequences ofFailure co Comply with Article 11 (4)
(d) Arricle 11(6): lhe Comniission's Power to Withdraw a Case
(i)The Legal Nature ofArticle 11(6)
(ii) The Authorities Covered byArticle 11 (6)
(iii) Circumstances in Which Withdrawal may be Envisaged
(iv) The Procedure for Applying Article 11 (6)
(4) CoherentApplication by National Courts
(a) The Competence ofNational Courts to Apply EU
Competition Rules
(b) The Coherent Application of EU Competition Rules by
National Courts
Commission Initiatives towards Coherent Application of EU
Competition Rules
The Commission's Policy Notices and Guidelines
(ii) Co-Financing the Training ofNationalJudges in EU
Competition Rules
(iii) A Database on NationalJudginents
(ii)Consisrency in the Case of Parailel or Consecutive Application of
EU Competition Rules
(c) Cooperation Between the Cornmission and the National Courts
(i)The Opportunity for the National Courts to ask the Commission
for Information or for its Opinion
(i)lThe Opportunity to As/e the Com missionfor Information
(ii) The Opportuniiy toAsk the Commissionforlts Opinion
(ii) lhe Submission ofObservations
3. Article 101
Jonathan Fauli, Lars Kjølbye, Henning Leupold, andAli Nikpay
A. Introduction
B. Scope of Article
(1) Scope
(2) Coai and Steel
(3) Defence
(4) Environment and Culture
(5) Sport
C. Article101(1)
(1) Undertakings
(a) Definition
(b) Professions
(e) Public Bodies Exception
(d) The Single Economic Unir Doctrine (No Intra-Enterprise Conspiracy in EU Law)
(i)A Subsidiary Whol1y-Owned, or Almost Wholly-Owned, By
(ii) A Parent Holding a Majority Shareholding in a Subsidiary But Less
than 100 Per Cent
(iii) Parent Liability in the Context ofJoint Control
(iv) Companies with Non-Conrrolling Stakes in Another Company
(e) Successor Underrakings
(2) Agreements
(a) General Definition
(b) Requires At LeastTwo Undertakings
(c) Form Irrelevanr
(d) Notion of'Agreement' and Limitation ofFreedom ofAction
(e) Single Continuous Infringement Doctrine
(f) TacitAcquiescence in Vertical Cases
(i) Volkswagen II
(ii) What Does Tacit Acquiescence Require?
(iii) Gare Should be Taken in App!ying the Bayer! Volkswagen II
(g) FormalTermination May Not be Sufficient
(h) Judicial Settlement
Decisions by Associations ofUndertakings
Concerted Practices
(a) Definition
(b) Can a Concerted Practice be Inferred from Circumstantial
Eviderice Alone?
(c) Vertical Concerted Practices
(i) 'Hub and Spoke' Concerted Practices
Distinction Between Agreeinents and Concerted Practices
State Compulsion
The Notion ofRestriction ofCompetition under EU Competition Law
Restriction by Object
(a) Concept ofRestriction by Object
(b) Restriction by Object and Appreciability
(i)'The 'Pre-&pedia'Case Law
(ii) The Commissions Approach to Appreciability in Object Cases
(iii) The Expedia Judgmerit
Restriction byEffect
(a) The Commission's Traditional Approach
(b) Modifications by the EU Courts
(c) Restrictions of Rivairy Must Be Assessed in Their Market Context
(d) Ancillary Restraints Doctrine
(i) Commercial Ancillarit
(ii) Public InterestAncillarity
(iii) 'lhe Narrow Scope ofthe Ancillary Restraints Doctrine
(i)Directly Related and Subo rdinate
(ii) Necessary
(iii) Objective Necessily for the Implementation ofthe
Main Operation
(iv) Concluding Remark: Ancillary Restraints Doctrine
(e) Exclusivity Necessary for Supply
(i) Exclusivity Must be Objectively Necessary
(ii) Ir is Unclear Whether this Doctrine Applies to Agreements
Between Competitors
(iii) Doctrine OnIy Likely to Apply in Clear-Cut Cases
(iv) Does the Approach App!y to 'Object' Cases?
(v) Difference Between Exclusivity Necessary for Supply and Ancillary
Restraints Doctrines
(f) Appreciability
(g) Cumulative Effects Doctrine
(h) lhe Purpose of the Market Analysis
(i) No Rule of Reason under Article 101(1)
(ii) Gøttrup-Klim
(iii) Wouters
(iv) Metro l and il
(v) 02
(i) Does 02 Signa/a Change in Direction?
(vi) Explicit Rejection of the Rule of Reason under Article 101(1) by the General Court
(i) Extent ofMarket Analysis
(j) Restrictive Clauses Are Nota Necessary Condirion for the Application of Article 101(1)(k) The Commission's Policy as ser our in the Article 101(3) Guidelines
(1) Step 1: lhe Counterfactual
(ii) Step 2: Assessment ofthe Likely Effect of the Agreement
(1)The Current State ofAffairs: Developments in the Cornrnission's
Policy and the EU Courts' Case Law Subsequent to the Article 101(3) Guidelines
Horizontal Cooperation Guidelines
(ii) Biock Exemption Regulations
(iii) DeMinimisNotice
D. Jurisdiction
(1) General
(2) The Concept ofTrade Between Member States
(3) The Link BetweenTrade and the Agreement or Practice
(4) The Notion of'MayAffect'
(b) A Sufficient Degree ofProbabiiity
(c) An Influence on the Pattern ofTrade
(i) Director Indirect, Actual or Potential
(5) Appreciability
(a) General Principies
(b) Quantification
(6) Assessment of Various Types ofAgreement and Practices
(a) Introduction
(b) Agreements and Practices Concerning lmports and Exports and
Agreements and Practices Implemented in Severa! Member States
(c) Agreements and Practices; Confined to the Whole or Part of a Member State
(d) Agreements and Practices Covering Part of a Member State
(e) Agreements and Practices Involving Third Countries
E. Article 101(2)
EThe Article 10 1(3) Exception
(1) Introduction
(2) The Reiationship Between Article 101(1) and Article
(3) General Principies for theApplication ofArticie
(b) The Narure ofthe Benefits that Can BeTaken into Account
(c)Tlhe Relevant Market as the Proper Framework for Applying
Article 101(3)
(d) The Temporal Application of Article 101(3)
(e) Biock Exemprions
(4) The Four Conditioris ofArticle 10 1(3)
(a) Introduction
(b) The First Test ofArticle 101(3): Efficiency Gains
(i) Examples of Relevant Types ofEfficiencies
(ii) The Substantiation ofEfficiency Claims
(c)The seconds testo of Article 101(3):Indispensabily
(d) The Third Test of Article 101(3): A Fair Share for Consumers
(e) The Fourth Test of Article 101(3): No Elimination of Competition in
Respect of a Substantial Part of the Products in Question
4. Article 102
Miguel dela Mano, Renato Nazzini, and Hans Zenger
A.The System ofEnforcement ofArticle 102
(1) Introduction
(a) Elements ofArticle 102
(b) Relationship Between Article 101 and Article 102
(c) Purpose ofArticle 102: Protection ofCompetition or Protection of Competitors?
(d) Role of Efficiencies in Article 102 Assessment
(2) Categorization of Abuses: Exploitative vs Exclusionary
(a) Prohibition of Customer Exploitation
(b) Prohibition ofExclusionary Practices
(3) Consequences of Infringement of Article 102
(a) Introduction
(b) Guiding Principies
(e) Types ofSanctions and Remedies in Article 102 Cases
(i) Fines
(ii) Cease and Desisr Orders
(iii) Behavioural Remedies
(iv) Structural Remedies
(v) Which Remedy is Most Appropriate?
(d) Procedural Issues
(4) Cornmitment Decisions (Article 9 of Regulation 1/2003)
(a) Basic PrincipIes
(b) Importance ofCommitment Decisions in Ar-dele 102 Cases
(c) Concerns Regarding the Use of Commitment Decisions in
Article 102 Cases
(5) Judicial Review ofArticle 102 Decisions
(a) Review ofFacts and Law 4.71
(b) Review ofComp1ex Economic Matters'
B. lhe Article 102 Enforcement Priorities Guidance
(1) lhe Emergence of the Effects-Based Approach
(a) Traditional Approach under EU Law
(b) Form- vs Effecrs-Based Approach
(e) Pros and Cons ofan Effects-Based Approac
(d) lhe Recent Adoption by the EU Courts of a More Explicitly Effects-Based Approach
(2) lhe Commission's Review of Article 102 Policy
(a) Purpose of the Review
(b) lhe StaffDiscussion Paper
(3) lhe Article 102 Enforcement Priorities Guidance
(a) Adoption of Guidance as opposed to Guidelines
(b) Economics-Based Approach to Enforcemenr
(c) lmpact ofthe Guidance on Future Cases
(d) Overview of the Guidance
(e) Brief Surnmary of the Approach to Abuse
(i) An ti-Competi tive Foreclosure
(ii) Assessment ofthe Effect on Consumers
(iii) Objective Justifications and Efficiencies
C. Dominance
(1) Concept ofSing!e Dominance
(a) Legal Definition ofSing!e Dominance
(b) Concerns Regarding the Elements ofthe Definition of Dominance
(c) ApproachTaken in theGuidance to theTestElements
(d) Assessment of Market Power
(e) How Does the Guidance Approach Fit with the Lega! Approach
(2) Factors Relevant to Single Dominance
(a) Economic Measurement of Market Power
(b) Factors Under the Case Law and the Commission's Guidance
(i)The Position ofthe Undertaking Concerned and Its Competitors
(i)Market Definition
(ii) Market Shares
(iii) Profitability ofthe Undertakin (iv) Conduct ofthe Undertaking
(v) The Position ofCompetitors
(ii) Barriers to Eniry and Expansion
(i)Regulatory Barriers to Ent,y
(ii) Capacity Constraints
(iii) Economies ofScale and Scope
(iv) Netu.'ark Effects
(v) Switching Costs
(vi) Vertical Integration and Exclusive of Preferential Arcess to
Inputsor C'ustomers
(vii) FinancialStrength
(viii) Spare o Excess Capacity
(ix) Orher Facrors
(iii) Courstervailing Buyer Power
(3) Concept ofCollective Dominance
(a) Definition ofCollective Dominance
(b) Non-Oligopolistic Coilective Dominance
(e) Vertical Non-Oligopolistic Coliective Dominance
(d) O!igopolistic Coilective Dominance
(4) Abuse of a Coilective Dominant Position
(a) Joint Abuses
(b) Single Abuses
(5) Dominance and Abuse in Neighbouring Markets
(6) Dominance in New Econorny Markets
D. Concept of Abuse
(1) General Concept ofAbuse
(2) Definition ofAbuse Under the EU Courts' Case Law
(3) lheTestforAbuse
(a) Exploitative and Discriminatory Abuses
(b) Exclusionary Abuses
(i) Potential Tests Based on Economic Principies
(ii) Approach Taken in the Commission's Guidance
(i)Anti-Competirive Foreclosure: General
(ii) Test for Foreclosure in Pricing Cases
(iii)When is Foreclosure Enough to beAnti-Competitive?
(iv) Likely Harm to Cõnsumers
(4) lhe Special Responsibility ofthe Dominant Undertaking
(5) Objective Justification
(a) General
(b) Objective Necessity
(c) Eflciency Defence
E. Predatory Pricing
(1) Whatis PredatoryPricing?
(a) Definition
(b) Economic Theories ofPredarory Pricing
(e) Distinguishing Prcdarory Pricing From Normal Comperition
(2) Predation Under EU Law: lhe AKZO Test
(a) Whecher and How to Assess the Intent ofthe Dominant Firm
(c) Is a Below Cost Test Appropriate?
(i) Above-Cost Price Cuts as Part of a Wider Exclusionary Strategy
(ii) Above-Cost Price Cuts by a Quasi-Monopolist Liable to Exclude
irs Only Competitor
(iii) Above-Cost Price Cuts Restricting Free Trade
(d) Difficukies With Reiying on Price-CosrTests
(i) Beiow Cost Pricing May Not Be a Necessary Condition
(ii) Below Cost Pricing May Nor Be a Suflicient Condition
(iii) Below Cost PricingMay Be Pro-Competitive
(iv) Below-Cost PricingTests Create Measurement Difficulties
(e) The post danmark test
(f) The Role of Recoupment?
(3) The Predation Test in the Artide 102 Enforcement Priorities Guidance
(a) Profit Sacrifice
(b) Exciusion ofan Equally Efficienr Competitor
(c) Consumer Harm and Recoupment
(i) Enrry is Unlikely Afrer the Prey is Excluded or Disciplined
(ii)Re-Enrry is Unlikely
(iii) Assessmenr ofthe Competitive Constraint Exercised by the
Excluded Rival
(iv) Dominance Is Nor Evidence of Recoupment
(d) Objecrivejustification
(i) Market-Expanding Eflciencies
(ii) To Facilirate Learning and Awareness of a Producr Among Consumers
(iii) Tolmprovethe Firm's Positioning as a Low-Price Company
(e) MeetingCompetition Defence
(f) Other Loss-Minimizing Strategies
F. Exclusive Dealing Exclusivity Obligations and Loyaky Rebates
(1) Case Law and Comrnission Decisional Practice
(a) Definition and Types of Exclusivity
(i) Legal and De Facto Exclusivity
(ii) Requirements Contracts
(iii) English Clauses
(iv) Irnposition of Exclusive Obligations on Suppliers
(v) Exclusivity Imposed by Distributors
(b) The Abuse Test in Exclusivity Cases
(e) Objective Justification
(d) Definition and Types ofConditional Rebates
(e) Abuse Test in Rebates Cases
(i) Rebates That Are Presumpuvely Lawful (Quantity Rebates)
(ii) Rebates ]bar Are Nakedly Exclusionary
(iii) Fidelity Rebates
(iv) Individualized Target Rebates
(v) Standardized Rebates
(2) Policy and Effects-Based Approach
(a) Commission's Approach Under the Article 102 Enforcement Priorities
(b) The Logic of the Commission's Approach Towards Loyalty Rebates and
Exclusive Dealing
(i)Economic Reasoning for Use of Rebate Schemes
(ii) Possible Anti-Competitive Harm From Use of Rebate Schemes
(c) Identifring An ri-Competi tive Foreclosure Under the Article 102
Enforcement Priorities Guidance
(i)Step 1:The As-Efficient Competi ror Test
(ii) Step 2: Assessment ofAnti-Competitive Foreclosure
(iii) Countervailing Efficiencies and Objective Justification
(d) The Limits of the Article 102 Enforcement Priorities
Guidance Approach
(e) The Commission's Application ofthe New Approach
G. Tying and Bundling
(1) Introduction
(a) Definition ofTying and Bundling
(b) Relationship with Article 101
(2) Legal Analysis and Case Law on Tying
(a) A Dominant Position on the Tying Market
(b) The Two-Product Tesr
(e) Coercion
(d) Anti-Comperirive Effect
(i) The Requirernent to Prove Foreclosure ofAs-Efficient Competitors
(e) Objective Justification
(i) Reduction in Transaction Cosrs
(ii) Preservation ofGoodwill Qualir Assurance, and Ensuring
Compliancewith Safety Requirements
(iii) Dynamic Efflciency
(iv) Standardization
(3) Case Law on MixedBundling
(4) Policy and Effects-Based Approach
(a) lhe Article 102 Enforcement Priorities Gui dance Approach Towards
Tying and Bundling
(b) No Presumprion ofAnti-Competitive Harm
(c) Anti-CompetitíveTying and Bundling
(d) Price Discrimination and Multi-Product Rebates
U. Refusal to Supply
(1) Concept of Abusive Refusal to Supply
(2) Basic Elements
(a) Com petitive Advantage on Downstream Market
(b) Enforcernent of Other Abuse
(e) Constructive Refusal to Supply
(d) De novo Refusais vs Wirhdrawal of Supply
(3) Types of Refusal to Supply
(a) Refusal to Supply a Physical Product or Service
(b) Refusal to ProvideAccess to an Essential Facility
(c) Refusal to License IP Righrs
(d) Refusal to Supply Information Needed for Interoperability
(4) Potential Anti-Comperitive Effects of Refusais to Supply
(5) The Case Law on Refusal to Supply
(a) General Framework
(b) lndispensability
(c) The Foreclosure Effect
(d) Raising Rivais' Costs as Exclusionary Effect?
(e) The Foreclosure Effecr and the 'Essential Facilities' Doctrine in
Commission Practice
(f) Consumer Harm
(g) Interoperability Cases Since Microsoft
(h) Refusal to Supply an Existing Customer
(i) Defences (Objective Necessity and Objective justification)
(6) The Approach Under the Comrnission's Guidance
(a) General Approach
(b) Necessaiy Conditions
(i)Objective Necessity
(ii)Elimination ofEtfective Competirion
(iii) Consumer Harm (and Incentives BalancingTest)
(iv) Objective justifications (Efflciencies)
(7) Refusal to Supply and Patents
1.Margin Squeeze
(1) Conceptofa Mirgin Squeeze Abuse
(2) Legal Analysis ofMargin Squeeze
(a) The Early Case Law
(b) Elernents ofthe Abuse
(i)Margin Squeeze is a Stand-Alone Abuse
(ii) 'The Need to Demonstrate an Anti-Competitive Effect
(iii) Factors Relevani to Assessing Potential Anti-Competitive Effect
(iv) The'As-Efficienç Competitor' Test
(v)Basis for Calculating Potential Effects
(vi) Objectivejustification
(vii) Relevance of Level of Dominance
(3) Economic Assessmenr
(a) General
(b) The Cost Benchmark
(d) Assessment of the Spread
(e) Specific Considerations in Start-Up Phases
(4) Interplay Between Margin Squeeze and Refusal to Deal: lndispensability
(5) Inrerplay Between Margin Squeeze and Regulatory Obligations
Specific Abusive Practices in Relation to IP Rights
(1) Introduction
(a) Complementary Aims of IP Rights and Antitrust
(b) Appropriateness ofAntitrust Intervention in the IP Rights Arena
(e) Potenrial Competi tion Concerns Arising our of IP Rights
(2) Suppiy of Misieading Information to Extend Patent Validity
(a) Nature of the Abuse
(b) Intent Not Determinative
(c) Evidence ofActual Effects
(3) Withdrawal ofMarketing Authorization to Restrict Entry of Generics
(4) Patent Filing Strategies
(a) Early Cases on Strategic Use of Patents
(b) Defensive Patent Strategies: Biocking Patents
(c) Other Strategic Behaviour
(5) Patent Settlements With Reverse Payments (Pay for Delay)
(a) Overview: Potenrial Benefirs and Harms From Patent Settlements
(b) Commission Practice
(6) Patent Hoid-Up in the Context of Standard Setting
(a) Conrext: Standard Setting and Patent Hoid-Up Possibilities
(b) Patent Ambush
(ii) Anti-Competitive Effects ofParentAmbush
(iii) Condi tions for Abuse: lhe RambusDecision
(c) FRAND Hoid-Up
(i)Definition of FRAND Hoid-Up: lhe Qualcomm Case
(ii)Particular Issues Surrounding Articie 102 Enforcement in
FRAND Licensing
(i)FRAND is Not a Static ar Pre-Defined Concept
(ii)What: Constitutes Fair'and Reasonable?
(iii)What Constitutes 'Non-Discriminatory?
(iii) Importance of FRAND
(7) Anti-Com peti tive Litigation in Relation to Standard Essentiai Patents
(8) IssuesApplicableAcross IP Rights Cases
(a) Assessing Dominance in Pharmaceurical IP Rights Cases
(i)Inferring Dominance from Levei of Renrs
(ii) Dominance Reiative to a Competitive Counterfactual Post-Loss of
(b) An ti-Compet i tive Foreciosure and Objective Justification in IP Rights
(c)Applicability ofArticle 102 to Standard' Strategies/Tactics Available
(d) Intervention under Article 102 vs Enforcemeru of IP Law
K. Exploitative Abuses
(1) Concept of Excessive Pricing
(2) The Tesr for Excessive Pricing Under EU Case Law
(a) The UnitedBrandsTest
(b) Difficulties in rhe Application ofthe UnitedBrandsTest: Port of Helsingborg
(e) AlternativeApproaches under the Case Law
(3) lmposing Other Unfairlerms
(4) EconornicApproach to Excessive Pricing
(a) Circumstances Suitable for Intervention
(i)To Restore Dynamic Competition
(ii)Exploitative Prices asa Result ofExclusionary Conduct
(iii) Exploitation of Dominance Resulting from
Non-Competitive Forces
(b) DeterminingWhether Prices are Abusive
(i)the Price-Cost Difference is Excessive
(ii)Unfair Price in Itselfor Compared to Others
(ii)Direct Price-Cost Comparisons
(5) Unfairly Low Prices Extracted by Dominam Buyers
(6) Limiting Production, Markets, or Technical Development
L. Price Discrimination
(1) Concept of Price Discrimination
(2) Competition Concerns Regarding Price Discrimination
(3) Case Law and Commission Practice on Article 102(c) Discriminatory
Pricing Abuses
(a) Discrimination Based on Narionality
(b) Geographicai Price Discrimination
(c) Market-Distorting Price Discrimination
(iii) Dissimilar Conditions
(iv) Competitive Disadvantage
(4) Policy and Effects-Based Approach
(a) The Conimission's Current EnforcementApproach
5. Mergers
Clã es Bengtsson, Josep Maria Carpi Badia, and Massimiliano Kadar
A. Introduction
(1) Origins and Evolution of EU Merger Control
(a) Introduction ofan EU Merger Control System
(b) lhe Firsr Decade ofApplication of EU Merger Control
(c) The Judgments i Airtours, Tetra Lavai, and Schneider
(d) The 2004 Reform
(e) Evolution of EU Merger Control Foliowing the 2004 Reform
(2) Core Principies of EU Merger Control
(a) Compulsory Ex Ante Notification
(b) One-StopShop
(c)One-TierAdministrative Procedure Subject to Judicial Review
(d) Enforcement Objectives
(3) Statistics on Enforcemenr Over Time
B. Jurisdiction
(1) Overview
(a) Two-Lirnbed Test to Determine Jurisdiction
(i)The Concept of a 'Concentration'
(ii) The Requirement ofan 'EU Dirnension'
(b) Regulatory Frarnework: lhe Merger Regulation and the
Jurisdicrional Notice
(c) Discussions with the Commission on Jurisdiction in Individual Cases
(2) The Concept of a Concentration: Merger
(3) The Concept of a Concentration: Acquisition of Control
(a) Overview
(b) Control
(i)Who Acquires Control? (ii) How Can Control Be Acquired?
(iii)The Object of Control
(iv)The Lasting Nature of the Change in Control
(v)Internal Restructurings and Concentrations Involving
State-Owned Undertakings
(c) The Acquisition of Sole Control
(i)De Jure Sole Control
(ii)De Facto Sole Control
(d) The Acquisition ofJoint Control
(i)Equal Voting Rights
(ii)Veto Rights
(iii) Joint Exercise ofVoting Rights
(e) Changes in the Structure and/or Quality of Control
(f) Non-Controlling Minority Shareholdings (Structural Links)
(g) Exceptions UnderArticle 3(5) of the Merger Regulation
(4) JointVentures
(b) Concept ofJoint Venture
(c)Relevam: JurisdictionalTest
(i)Creation of a Joint Venture
(ii) JointAcquisitions ofan Undertakingor Business
(iii) Other Operations Involving Joint Ventures
(d) lhe Requirement ofFull-Functionality
(ii)Sufficient Resources to Operate Independentlyon the Market
(iii) Relations Between the Joint Venture and its Parem: Companies
(iv) Operatingon a Lasting Basis
(5) lncerrelated and Staggered Operations
(a) Interdependent Transactions
(b) Consecutive Transactions Between the Sarne Parties
(Staggered Transacrions)
(6) Ancillary Restraints
(7) The Requirement ofan EU Dimension
(a) The Purpose ofTurnover Thresholds
(b) The Principal llireshold under Article 1(2) of the Merger Regulation
(c) The Alternative Threshold under Article 1(3) of the Merger Regulation
(d) Appraisal of the Operation of the Turnover Thresholds
(8) The Calcuiation of Relevant Turnover
(a) Step 1: 1dentif'ing the Undertakings Concerned
(ii)Specific Scenarios on the Acquiring Side
(iii) Specific Sceriarios on the Acquired Side
(b) Step 2: Methodology for the Calculation of Turnover
(i)Concept ofTurnover
(ii) Attribution ofTurnover Between Undertakings in a Group
(iii) Treatment of Internal Turnover
(iv) Geographic Aliocation ofTurnover
(c) ilhe Relevant Date and Financial Accounts
C. Interaction with Member States and Third Countries
(1) Introduction
(2) Realiocation ofjurisdiction between the Commission and Member
States ('Referrais')
(a) Purpose ofthe Referral System
(b) Use ofthe Referral System Over Time
(c) Guiding Principies Applied when Considering Referral Requests
(d) Operation ofrhe Referral System in Practice
(i)Referrais from the Commission to One or More NCAs
('i)Pre-Notification Referrals Requested by the Parties (Article 4(4))
(ii)Post-Notification Referrais Requested by an NCA (Article 9)
(ii) Referrais From One or More NCAs to the Commission
(i)Pre-Notflcation Referrais Requested by the Parties
(ii)Post-notflcation Referrais Requested by an NCA (Article22)
(e) Evaluation and Reform ofthe Referral System
(3) Member State Action on Non-Competition Grounds
(b) Assessmenr ofLegitimate Interests
(i)Recognized Interests
(ii) Non-Recognized Interests
(4) Concentrations in the Defence Sector
(5) Cooperation Between the Commission and Member States
(a) General Cooperation Obligations
(b) Cooperation During Specific Phases ofan Investigation
(i)During the Referral Process
(ii)During Phase 1
(iii) During Phase II
(c) Enhancing Cooperation Between Member States lhrough the ECN
(6) Merger Control in the EEA Context
(a) The Scope of che Merger Control System under the EEA
(b) Aliocation ofJurisdiction Between the Commission and the EFTA
Surveillance Authority
(c) Cooperation Between the Commission and the EFTA
Surveiliance Authoriry
(7) International Cooperation in Merger Control
(a) Framework for international Cooperation
(b) Practical Aspects ofinternational Cooperation in Merger Cases
(c)Statistics on International Cooperation
D. Merger Control Procedure
(1) Introduction
(2) Principal Features ofthe Procedural Framework
(a)Underlying Rationale: Proportionate, Effective Contrai
(b) Binding Procedural Deadlines
(c) The Instruments ofthe Procedural Framework
(d) The Different Actors in EU Merger Proceedings
(i)The Notifying Parties and Other Involved Parties
(ii) The Commission
(iii) 'Third Parties
(iv) Member State NCAs
(v)Non-EU Agencies
(vi) The EU Courts
(3) The Main Steps and Timetable for EU Merger Control Proceedings
(4) The Pre-Notification Phase
(b) Timing ofPre-Notification Contacts
(c) Initial Contact and Request for a Case Team
(d) Confidentia!ity
(e)Discussions on Jurisdiction
(f) Discussions on Substance, Procedure, and Timing
(g) Review ofDrafr(s) Form CO and Requests for Waivers
(h) Submission oflnternal Documents
(i)Fact Finding: Contacts with 'Third Parties
(j)Green Light for Notification
(5) Notification of a Concentration
(b) Obligation to Notify and Standstiil Obligation
(i)Automatic Exceptions: Pubiic Bids and Series ofTransactions
in Securiries
(ii) Ad Hoc Derogations ar the Requesr ofthe Parties
(iii) Preventing Early Implementation
(c) Consequences ofFailure to Notify
(d) Timing ofNotification
(e)Notif'ing Parties
(f) Submission ofForm CO
(g) Incompiereness
(h) Publication ofthe Fact ofthe Notification
(6) PhaseI
(b) Timetable and Deadlines
(d) Where Competition Concerns are ldentified
(O Notification and Publication
(i)Notification To The Parties
(7) Phase II: In-Depth investigation
(a) Introduction
(b) Procedural Safeguards in Phase II
(c) Timetable and Deadlines
(d) Initial Stage: Review of Key Documents, Reply to the Article 6(1)(c)
Decision and State ofPlay Meeting
(e) In-Depth Investigarion
(f) Where the Competition Concerns are Dispelled
(g) Where Competition Concerns Remain
(Ii) The Statement ofObjections
(i)Purpose and Content
(iii) Scope of the SO
(iv) Orher Parties
(i)Access to File
(iii) Scope
(ii)Business Secrets and Confidentiallnformation
(iv) Protection ofBusiness Secrets and Confidential Information
(v)Use of the Information/Access to Documents
(j)Reply to the SO and Oral Hearing
(i)Reply to the SO
(ii)Oral Hearing
(iii)Conduct ofthe Hearing
(iv)Post-Hearing Report
(k) lilie Post-SO/OraI Hearing Stage
(i)Final State of Play Meetings
(ii)Peer Review Pane!
(iii) AdvisoryCommittee
(m) Notification and Publication
(n) Post-Decision Remedies Process
The Simplified Procedure
(a) Overview and Rationale
(b) The Commission's Discretion in App!ying the Simplified Procedure
(c) Use of the Simplified Procedure in Practice
(d) Impact of the Simplified Procedure on Deadlines
(e)lhe Scope of the Simplified Procedure: Categories of Suitab!e Cases
(i)Five Categories ofSuitab!e Cases
(g) Decision
Abandonment of a Concentration, Withdrawal and Re-submission of a
Notification, Change ofan Authorized Transaction
(a) Abandonment
(b) Withdrawal of a Notification
(c)Cliange in theTransaction Structure
Particular Procedures
(a) Interim Measures
(ii)Coriditions Necessary for the Imposition ofinterim Measures
(iii) Scope oflnterim Measures
(iv) Process
(b) Revocation of a Clearance Decision
(c)Inspections and Requests for Information by Decision
(d) Imposition of Fines and Periodic Penalties
(ii)Periodic Penalty Payments
E. Substantive Assessment
(1) Main Elements of the Assessment under Article 2 of the
Merger Regulation
(b) 'whichwould'
(c)'impede effective competition'
(i)Intermediate and Ultimate Consumers
(ii) Concept ofConsumer Welfare
(e)'in the common market or in a substantial part of ir,'
(f)'in particular as a result of the creation or strengthening of a dominant position.'
(2) Definition of the Relevant Market
(a) Relevant Product Market
(i)Demand-Side Substitution
(ii)Supply-Side Substitution
(b) Relevant Geographic Market
(i)Defining the Geographic Market on the Basis ofLocation of
Customers or Producers
(c) The SSNIPTest and Critica! Loss Analysis
(d) PriceDiscrimination Markers
(e) Factors Relevant to Market Definition and Types ofEvidence
Relied On
(i)Views 011 Functionality
(ii) Commercial Strategies and Marketing Material(iii) Analysis of Price Leveis
(iv) Analysis of Price Correlation
(v)Event Analysis
(O Market Definition for Merger Cases and Antitrust Cases are Similar
(g) Market Definition in an Effects-Based Analysis
(3) Analysis of the Effects of a Concentration
(a) lhe Move to a More Effecrs-Based Approach
(b) Gravitation Towards Unilateral Horizontal Effects
(c) Increasingly Complex Assessments
(4) Horizontal Mergers
(a) Non-Coordjnated Effects (Unilateral EWects)
(i)Market Share Thresholds
(i)Which Market Shares are Relevantfor the Assessment?
(ii)Market Shares Indicatinga Lack ofSubstantive Concern
(iii)Market Shares indicatinga LikelihoodofSubstantive Concerns
(ii)Intervention Thresholds: Removal of a Significant Competitive
(iii)Assessment of Effect: Additional Factors
(iv) Differentiated Product Markets: Closeness ofCompetition
(i)Views of the Market Particzants
(ii)Internal documents
(iii)Bidding Data
(iv)Switching Data
(vi)Cross-Price Elasticities
(vii) Mode/ling the Market
(v)Homogeneous Product Markets: Capacity
(vii)Abilityto Hinder Expansion
(viii) Merger with a Potential Competitor
(ix)Buyer Power Created by the Merger
(b) Coordinated Effects
(i)Concept and History
(i)Collective Dorninance Under the 1989 Merger Regulation
(ii)lhe Airtours Benchmark
(iii)The SONYlBMGJurisprudence
(ii)Analytical Framework
(i)The Airtours Criteria
(ii)TheApproach Under the JiorizontalMerger Guidelines
(iii) Creating Coordination or Strengthening Existing
(1)Creating Coordination (ii) Strengthening Coordination
(iv) The Criteria for Coordination
(i)Reaching Terms of Coordination (A Conducive Market
(ii)Monitoring Deviations
(iii)Adequate DeterreritMechanisrns
(iv)Reactions ofOutsiders
(5)Non-Horizontal Assessment
(aNon-Coordinated Effects (Unilateral Effects)
(i)Theories of Harm
(i)Example oflnput Foreclosure: UTC/Goodrich
(ii)Example af Custo ner Foreclosure: Mobile Wailet Platform
(iii)Exainple of Conglornerate Effects: Intel/McAfee
(ii)Who is Entitled to Protection From the Potential Effects of Non-Horizontal Mergers?
(iii) Framework for Analysing Foreclosure
(i)Ability of Foreclose
(iv) The Diminished Role of Dominance in Non-Horizontal
(b) Coordinated Effects
(i)ReachingTerrns of Coordination
(ii)Monitoring Deviations
(iii) Deterrent Mechanisms
(iv) Reactions From Outsiders
(6) Countervailing Factors
(a) Buyer Power
(i)The Exercise ofBuyer Power
(i)Immediately Switch Supplier
(ii)Vertically Integrate Upstream
(iii)Sponsor Entry
(iv)Refrse to Buy Other Products
(ii) Buyer Power Must Benefit AI] Customers
(b) Entry
(i)Types ofEotry Barrier
(ii) Link Berween Entry Barriers and Market Definition
(iii) Condirions for Entry to be Sufficient Countervailing Factor
(i)Entry Must Be Likely 5.905
(ii)Entry Must Be Timely 5.916
(iii)Entry Must Be Sufficient
(i)HistoricTreatmeot ofEificiencies: The 'Efficiency Offence'?
(iii) Criteria for an Efficiency Defence
(i)Efficiencies Must Benefit Consumers
(ii)Efficiencies Must Be Merger-Specific
(iii)Efficiencies Must Be Verifiable
(d) Failing Firm Defence
(i)Conditions Necessary for Failing Firm Defence
(i)ExitDue to Financia1Dfficufries
(ii)No Less Anti-Competitive Solution
('iii) Exít Fron the Market
(ii)Failing Division
(iii) Parties Must Provide the Evidence
(f) Remedies
(1) Overview
(2) General Principies
(a) Roles of notifyng parties and commision
(b) Attachrnent to Decision as Condirions or Obligations
(c) Disrinction Berween Remedies, Take-Note' Com mitment, and
FactsTaken IntoAccount
(iii) Potential Remedy for Breach
(3) Conditions That Remedies Must Meet
(a) Remedies Must Eliminate the Competition Concerris
(b) Remedies Must Be Proportionate
(c)Remedies Must Be Capable ofEifective Implementation
(i)Tirnely Implementarion
(ii)Lasting and Workable Solution
(iii) Capable ofAdequate Monitoring
(d) Remedies Must Not Lead to New Competi tion Concerns
(4) Remedies in Phase I and Phase II
(a) Phase I Remedies
(i)Substantive Requirements
(ii)Formai Requirernents
(iii) Timing
(iv) Assessment Process
(vi) Outcome
(b) Pbase II Remedies
(i)Substantive Requirements
(ii)Formal Requirements
(iii) Time Limjts
(iv) Assessrnent Process
(vi) Outcome
(5) Types of Remedies
(a) Typology and Terminology
(b) Acceptability of the Various Categories
(c)Divestiture of a Business
(iii) Divestiture of a Viable and Competitive Stand-Alone Business
(iv) Carve-Qut Divestitures
(v)Alternative to Carve-Outs
(vi) Alternative Divestitures: Crown Jewels
(vii) Suitable Purchaser
(i)Standard Requirements
(ii) When a Suítable PurchaserMust Be Identfied
(d) Rernoval ofLinkswith Competitors
(e) Access Remedies
(f) Commitments to Enter Into, Modify orTerminate Long-Term
(g) Conduct Remedies in Conglomerate Cases
(h) Other Conduct Remedies
(6) Implementation and Modification of Remedies Post-Decision
(a) Implementation of Remedies
(ii)Obligations of the Parties in the lnterim Period
(iii) Hold-Separate Manager
(iv) MonitoringTrustee
(v)Proposai for a Suirable Purchaser
(vi) DivesritureTrustee
(b) Modification of Remedies Posr-Decision
(i)Extension ofFirst Divestiture Period
(ii)Other Modifications Requested by the Parties
(iii) Other Modifications Requesred by the Commission
(c) Breach of Remedies
(i)Breach of Obligations
(ii)Breach of Conditions
G. Judicial Review
(1) Introduction
(2) Types ofActs That Can Be Reviewed
(3) Legal Standing in Actions for Annulment
(a) Member Srares, Parliament, and Council
(b) Natural and Legal Persons
(1)The Norifying Parties
(ii)Other Parties to the Concentration
(iii) Third Parties
(4) Grounds for Chailenge
(a) Lack ofCompetence
(b) Infringement ofan Essential Procedural Requirement
(e) Infringement ofthe Treaties or ofAny Rule ofLaw Relating to
(d) Misuse of Powers
(5) Procedure
(a) General
(b) Interim Measures
(e) Expedited Procedure
(d) Appeals from the General Court to the Court ofJusrice
(6) 'lhe ScopeofReview
(b) Burden of Proof
(e) Standard ofProof
(d) Standard of Review: lhe Margin of Appreciation
(e)Fulijurisdiction Over Fines and Periodic Penalty Payments
(7) Consequences ofAnnulment
(b) lhe New Exarnination
(8) Actions for Damages
(b) Unlawful Conduct
(c) Harm
(d) Causal Link
6. Article 106-Exclusive or Special Rights and Other Anti-Competitive
State Measures
José Luis Buendia Sierra
A. Introduction
(i)Com petition Law Normally Deals Only With the Behaviour of
(ii)State Defence Doctrine
(iii) State Liability Under Competirion Law
B. Application ofArticles 4(3) and 3(3) TEU and Articles 101 and 102
EU to Anti-Competitive State Measures
(i)Initial Position (Broad Interpretation)
(ii)Court Narrows Interpretation
(iii) Iinpact of the LisbonTreaty
(iv) Application ofArticles 106, 107, and 108 to Anti-Competitive
State Measures
C. Article 106(1): State Measures in Respect ofPublic or
Privileged Undertakings
(1) Addressees and Regulatory Content
(2) State Measures
(3) Related to Public or Privileged Undertakings
(a)Economic Activity
(i)Article 106(1) Applies to State Regulation of Economic Activities
(ii)Definition of'EconomicActivity'
(iii)Criteria Used By the Court of justice
(iv)Public' Undertaking
(v)Definition ofPublic Undertaking
(vi)A Separate Legal Enrity is Nor Necessary
(vii)Public Underrakings After Privatization
(viii) 'Privileged' Undertakings
(b) Exclusive Rights
(i)Notion of'Exclusive Right'
(ii)Exclusive Right and Dominant Position are Different llhings
(iii) Exclusive Rights are Created hy State Measures
(iv) Need for a Discretionary Decision by the State
(v)Special Rights
(e) lhe Connection Between the Measure and the Undertaking
(i)Types ofConnection Required byArticle 106(1)
(ii)State Measures Wliich Benefir the Undertaking
(iii) State Measures Which Use the Undertaking as an lnstrument
(iv) State Measures Granting an Exclusive Right
(v)The Dual Role of Exclusive Rights Within Article 106(1)
(vi) General Measures Do Not Fail Under Article 106(1)
(4) Contrary to Another Provision oftheTFEU
(5) Article 106(1) in Combination with the Competition Rules Addressed to
(a) Article 106 (1) in CombinationwithArticle 102
(i)Dorninarit Position
(ii)State Measures Leading to Actual Abusive Behaviour of the
(iii) Different Types of Abuse
(iv) Only the State is Responsible for State-Imposed Abuses
(v)Both the State and the Undertaking are Liable for State-Induced
(vi) State Inactivity
(b) State Measures Affecting the Structure ofCompetiuon and Leading to
Potential Abusive Behaviour ofUndertakings
(i)No Requirement for Actual Abuse
(ii)The Granting ofRegulatory Powers to an Undertaking
(iii)The 'Bundling' ofRegulatory and Commercial Activities
(iv)The Granting of an Exclusive Right
(v)The Demand Limitation Doctrine
(vi)The Conflict oflnterest Doctrine
(vii)Presumprion of Causal Link
(viii) Effects Similar to Those of Abusive Behaviour
(ix)The Doctrine of the Extension of a Dominant Position
(x)The Automatic Abuse Doctrine
(xi)The La Crespelle Case
(xii)More Recent Cases
(xiii) The Current Status Quo
(xiv) Effect on Intra-EU Trade
(c) Article 106(1) in Combination with Article 101
(6) Article 106(1) in Combination with theTreaty Rules Addressed to the
Member States
(a) The Double Function of Article 106(1)
(i)Article 106(1) as a 'Reminder' ofProhibitions
(ii)'Lifting the Veil'
(b) Article 106(1) in Combination with the Rules on Free Movement of
Goods: Articles 34 and 37
(i)The General Regime: Measures of Equivalent Effect and Article 34
(ii) The Special Regime: State Monopolies and Article 37
State monopolies of a commercial character
(iv) Obligations Contained in Article 37
(v)Obligations During theTransitional Period
(vi) ObligarionsAfrer the Transitional Period
(vii) lhe Borderline Between the General and Speciai Regimes
(c) Article 106(1) in Combination with the Rules on Freedom to Provide
Services and on Establishment: Articies 49 and 56
(i)Article 106(1) in Combination with Article 56
(ii) Article 106(1) in Combination with Article 49
(iii) Obligation to Select the Operator of a Public Service Concession
Through a Competitive Tender
(iv) Need for a Cross-Border Element
(7) DirectEffect
D. Article 106(2): Services of General Economic Interest and Other
Public Interest Objectives
(1)The Undertakings to which Article 106(2) Relates
(ii) Undertakings Entrusted With the Operation of Services of General
Economic Interest
(iii) Services of General Economic Interest
(iv) Entrustment
(v)Revenue-Producing Monopolies
(2) Article 106(2) as an Exception Applicable to the Behaviour of Undertakings
and to State Measures
(3) Conditions for the Application of Article 106(2)
(i)The Necessity of the Measure
(ii)The Proportionality Principie
(iii)The Old Approach: A Strict Interpretation of the
(iv)The Need for a More Flexibie Interpretation
(v)Universal Service as ajustification for Exclusive Rights
(vi)The Corbeau Case
(vii)The AlmeloCase
(viii) Other Cases
(ix)Case lawof the General Court
(x)Need for an Economic Analysis
(xi)The Dynamic Characrer ofProportionalíty
(xii) Different Approaches Depending on the Sector
(xiii) The Strict Approach and the Flexible Approach
(xiv) Universal Services and Other Services of General
Economic lnterest
(xv)Examples of Measures Considered NonProportiona1
(xvi) lhe Interest of the EU
(4) Invocation of Article 106(2) and Burden ofProof 6.216
(5) Relationship between Article 106(2) and Other Exceptions
(i)Mandatory Requirements' Within the Framework of
Article 106(2)
(ii)Article 101(3)
(6) Relationship between Article 106(2) and Article 14
E. Article 106(3): Procedural Rules Applying to Anti-Competitive State
(1) Article 106(3) Decisions
(i)General Issues
(ii) AnalogyWith Other Procedures
(iii) Discretionary Character of the Procedure Under Article 106(3)
(iv) Lodging ofComplaints and Ex Officio Cases
(v)Dismissal ofComplaints
(a) The lnfringement Procedure
(i)Inrerim Measures
(ii)Letter of Formal Notice
(iii)The Rights of the Member State and of the Undertaking that
Benefits from the Measure
(iv)End of the Procedure Without a Formal Decision
(v)The Formal Decision and Its Effects
(vi)Binding Effecrs
(vii)Action for Annulment Against anArticle 106(3) Decision
(viii) Action for Failure to Implernent an Article 106(3) Decision
(2) Article 106(3) Directives
(i)Preventive Funcrions of Article 106 (3) Directives
(ii)Article 106(3) Directives as Instruments for Detecting Future
(iii) Article 106(3) Directives as Instruments for 'Specifying' the
Provisions of the Treaty
(3) Legal Regime ofArricle 106(3) Directives
(i)The Exclusive Comperence of the Commission
(ii)Limits to the Commission's Competence
(iii)Article 106(3) Directives Cannot Deal With the Autonomous
Behaviour ofUriderrakings
(iv)Formal Limits tu the Cornmission's Power under
Article 106(3)
(v)Binding Effects
(vi)Lack of Direct Effect
(vii)Relationship Between Directives Under Article 106(3) and
Harmonizing Directives
(viii) Article 106(3) Overlaps Wirh OtherTreaty Provisions
(ix)Article 106(3) OverlapswirbArticle 14
(x)The Dissuasive Role of Article 106(3)


7. Horizontal Cooperation Agreements
Matthew Bennett, Francisco Enrique González Díaz, HenningLeupold»
Anna Vernet, and Donncadh Woods
(1) Definition of Horizontal Agreements and Practices
(2) Background to Horizontal Agreements and Practices
B. Assessment of Horizontal Cooperation Agreements under Article 101
(1) Purpose and Scope
(2) Framework ofAnalysis
C. JointVentures InvolvingJoint Control
(1) Definition and Constitution of a Joint Venture
(b) Constitution ofaJointVenture
(2) Distincrion Between Cooperative and ConcentrativejointVentures
(3) 'lhe Rationale Behind the Difference in Treatmenr Between Full-Function
Concentrative and Full-Function Cooperative Joint Ventures
(4) 'lhe Application of Article 101(1) by the Commission to Cooperative
Joint Ventures Prior to the Entry into Force of the 1997 Arnendment
to the First Merger Regulation
(5) 'lhe Notion and Role ofPotential Competition in Assessing the Validity of
JointVentures under Article 101
(6) Conditions Leading to the Incentive to Coordinate (Spillover Effects)
(b) Spillovers on the Sarne Market As That of the joint Venrure
(c) Spillovers on to Other Markets
(i)Spillovers on to Downstrearn Markets
(ii) Spillovers on to Adjacent Product Markets
(iii) Spillovers on to Adjacent Geographic Markets
(d) Network Effects
(7) Direct Contractual Restrictions Between Parents
(8) hirra-Group Agreements and Joint Ventures
(9) Spillovers under the Merger Regulation
D. Research and Development Agreements
(1) Overview
(2) Horizontal Cooperation Guidelines
(a) Relevant Markets
(b) Calculation ofMarket Shares
(c)Competi tive Assessrnent under Article 101(1)
(d) Competirive Assessrnent under Article 101(3)
(e) Time ofAssessment
(3) 'lhe R&D BER
(a) Background and Overview
(b) KeyConcepts ofthe R&D BER
(i)Article 1 of the R&D BER: Definitions
(ii) Article 2 of the R&D BER: Scope ofApplication
(iii) Article 3 of the R&D BER: Positive Exeniprion Criteria
(iv) Article 4 ofthe R&D BER: Market Share Threshold and Duration
Of Exemption
(v) Article 5 ofthe R&D BER: Hardcore Restrictions
(vi) Article 6 ofthe R&D BER: Excluded Restrictions
(vii) Article 7 ofthe R&D BER: Application ofthe Market Share
E. Production Agreements
(1) Introduction
(2) Horizontal Cooperation Guidelines
(a) Main Changes Compared to the 2001 Text
(b) Scope
(c) Relevant Markets
(3) Competi tive Assessment under Article 101(1)
(a) Main Competition Concerns
(b) Restrictions ofCompetition by Object
(c) Restrictions ofCompetition by Effect
(d) Safe Harbour
(4) Competitive Assessment under Article 101(3)
(5) The Specialisation BER
(a) Background and Overview
(b) Key Concepts ofthe Specialisation BER
(i)Article 1: Definitions
(i)Specialization Agreement: Article 1(1)(a)
(ii)Unilateral Specialization Agreement: Article 1 (1)(b)
(iii)Reciprocal Specialization Agreement: Artick 1 (1)(c)
(iv)Agreements onJoint Production: Article 1(1)(d)
(v)Agreement:Article lO)(e)
(vi)Product: Article 1(1)cf)
(vü) Production:Article I(1)(g)
(viii) lhe Preparation ofServices: Article 1(1)(h)
(ix)Relevant Market:Article 1(1)(i)
(x)Specialization Product:Article 1(1)0)
(xi)Downstream Products: Article 1 (1)(k)
(xii) Competing Undertaking: Article 1(1)(l); Actual
Competitor: Article 1 (1)(m); and Potential Competitor: Article 1(1)(n)
(xiii) Exclusive Supply Obligation: Article ](])(o)
(xiv) Exclusive Purchase Obligation: Article l(l)(p)
(xv) Joínt:Articlel(1)(q)
(xvi) Distribution: Article 1(I)(r)
(xvii) Undertaking, Parties, and ConnectedParties:Artick 1(2)
(ii) Article 2: The Exernption-Scope ofApplication
(i)Assignment or Licensing ofIP Rights
(iii) Article 3: Market Share Threshold
(i)The Dfferent Market Share lhreshalds
(iv) Article 4: Hardcore Restrictions
(i)Price-RelatedRestrictions:Article 4(a)
(ii)Limitation af Output ar SaIes: Article 4(b)
(iii)TheAllacation ofMarkets and Customers: Article 4(c)
(v)Article 5: Application ofthe Market Share Thresholds
(i) The CalcuLation ofMarket Shares: Article 5(a), (b), and (c)
(vi) Article 6: Transirional Period
(vii) Article 7: Period of Vaiidity
E Joint SellingAgreements
(1) Introduction
(b) Potential or Actual Competi tors
(d) Main Competition Issues
(2) Application ofArticle 10 1(1) toJoint SellingAgreements
(a)Restrictions ofCompetition By Object
(b) Restrictions ofCompetition By Effect
(c) Safe Harbour
(3) Factors Addressed in Commission Decisions and the Guidelines
(a)Market Structure; Oligopo!istic Markets
(b) Market Entry
(c)Price Restrictions
(d) Output Restrictions
(e)Exclusivity Clauses
(4) Application ofArticle 101(3) to Joint Selling Agreements
(b) Specific Circumstances Aliowing for an Exemption ofPrice Fixing
G. Joint Purchasing Agreements
(b) Relevant Markets
(e)Potential orActual Competitors
(d) Main Competition Issues
(e) Buying Power
(2) Application ofArticle 101(1) to Joint Purchasing Agreements
(a)Restrictions ofCompctition By Object
(b) Restrictions ofCompetition By Effect
(c) Safe Harbour
(d) Coliusive Outcome
(3) Facrors Addressed in Commission's Guidelines and Decisions
(a) lhe Existence ofDownstream Market Power
(b) The Existerice ofUpstream Market Power
(c) Measurement of Buyer Power
(d) SMEs
(e) Countervailing Power ofStrong Suppliers
(f) Exclusive Purchasing Obligations
(4) Application ofArticle 101(3) to Joint Purchasing Agreements
H. Information Exchange Agreements
(1) Introduction
(2) Main Competition Issues
(a) Information Exchanges May Facilitate Coordination
(b) Information Exchanges That Exclude Competitors
(c) Competition Issues Absent Coordination or Exclusionary Concerns
(3) Poteritial Benefits
(a) Enhanced Consumer Transparency
(b) Enhanced Allocative Efficiencies
(c) Reduction in Asymmetric Information Problerns
(d) Benchmarking
(4) Criteria for Assessment
(a)Restrictions ofCompetition By Object
(b) MeaningofFuture Intentions
(c) Frequency asa Determinative Criteria for Object Assessment
(d) Cartel Agreements vs Exchange oflnformation Agreements
(e)Concerted Practices
(5) Assessment of Likely or Actual Effects
(a) Characteristics of Relevant Market
(i)Degree ofConcentration
(ii) Stability of Supply and Demand
(iii) Symmctric Costs and Market Structures
(iv) Frequency ofFirms' Interactions
(v)Barriers to Entry
(b) Characteristics of Information Exchanged
(i)Coverage of Relevant Market
(ii)Srrategic Significarice of Information
(iii) Public vs Non-Public Information
(iv) Exchanges Made Pubiicly vs Exchanges Made Non-Publiciy
(v)Degree ofAggregation
(vi) Age of Data
(vii) Frequency of Exchange
1.Standardization Agreements
(1) Introduction
(2) Recent Investigations in the Arca of Standard-Setting Agreements
(3) Agreements on Standards under the 2010 Horizontal
Cooperation Guidelines
(b) Relevant Markets
(c) of Harm
(d) When Could There Be a Restriction By Object?
(e) The Safe Harbour Principies
(f) FRAND Benchmarks
(g) Effects-Based Assessment
(h) Articie 101(3): Efficiencies
J.Standard Ternis
(1) Introduction
(2) Standard Terms under the 2010 Horizontal Cooperarion Guidelines
(a)Relevant Markets
(b) Theories ofHarm
(c)Restriction By Object
(d) Effects-Based Assessment
(g) Pass-On to Consumers
(h) No Eliminarion of Competition
8. Carteis
Antojne Colombani, Jindrich Kloub, and Ewoud Sakkers
A. Introduction
(2) lhe Per Se Prohibition ofCartels in EU Competition Law
(3) Harm Caused by Carteis
B. Typology of Cartel Arrangements and Common Features ofCollusion
(1) Typoiogy of Cartel Arrarigements
(a) Director Indirect Fixing of Purchase or Selling Prices or Any Other
Trading Conditions
(i)Uniform Prices and Price Formulae
(ii)Minimum Prices
(iii)Target' Prices
(iv)Recommerided Prices
(v)Discussion of Prices for Individual Customers/Customer Lists
(vi)Agreement on Part of the Price or on Price Supplements
(vii) Maximum Rebates
(viii) Agreements on Other Trade Conditions
(ix)Agreement on the Purchase Price ofRaw Materiais
(x)Coordinated Price 'Campaigns'
(b) Limitation or Control of Production, Markets, Technicai Development,
or Investment
(i)Production or Sales Quotas
(ii) Other Types ofJoint Limitation or Control of Production
(iii) lhe Control or Limitation aí Commercial Investment
(iv) Coilusive Product Specialization
(v)Channeiling Output/Grant ofReciprocal Selling Rights and Joint
Sales Arrangements
(vi) Standard Setting
(vii) Other Practices Limiring Production orTechnological Development
(c) Sharing ofMarkets, Customers, or Sources ofSuppiy
(i)Aliocation ofMarket Shares
(ii)Aliocation ofTerritories or Distribution Channeis
(iii) Aliocation ofCustomers and Other Customer-Specific Practices
(iv) Bid Rigging
(v)Sharing Sources ofSupply
(d) Coordinated Boycorts, Bans on Imports, Concerted Refusal to Deal
(i)Keeping Competitors Away From the Cartel's Market
(ii)Piacing Certain Com petitors ata Competi tive Disadvantage
(iii) Boycott ofReluctant Llnderrakings
(e)Exchange of Commercially Sensitive Information/Unilateral Signalling/
I-Iub-and-Spoke Carteis
(i)Exchange oflnformation
(ii)Focusing on the Object'
(iii)The 2010 Horizontal Cooperation Guidelines
(iv)Coilusion With Only an Indirect Effect on Prices Also Prohibited
(v)Form of Coilusion is Immaterial ifObject is Established
(vi)informarion Exchanges lllicit Based on Evidence of' Effect'?
(vii)Conciusion as to Information Exchange
(viii)Unilateral Signalling
(ix)Hub-and-Spoke' Carteis
(f) The Problem of'Tacit Coilusion
(i)The TheoryofTacitCollusion
(ii)Does Tacit Coilusion Amount to Cartel Behaviour?
(iii) Conclusion on Tacit Coilusion
(g) Assessment ofCartels underArticle 101(3)
(2) Common Features ofCollusion
(a) Factors Conducive to the Establishmenr ofCartels
(i)Oligopolistic Markets
(ii) Coilusive Business Values and Established Communication
(iii) Exogenous Triggering Events
(iv) lhe Determining Role oflnstigators
(b) Organizational Aspects ofCartels
(i)Regular Meetings
(i)From Informal Contacts to Highly InstitutionalizedSchemes
(ii)Multile Working Leveis
(iii)Pre-Meetings' and 4dHoc Meerings'
(ii) The Role of Trade Associations and Fiduciary Companies and Their Liability
(i)Liability of TradeAssociations in Earlier Cases
(ii)Towards a DiscretionaryApproach ia TradeAssociation Liability
(iii) Addressing the Role Played by Certain Fiduciay Companies ia
Facilitating Coliusion: Earlier Cases
(iv)Towards a Systematic Sanctioning ofFacilirating Companies as
(iii) Coricealment Measures
(i)Ccvering the Cartel Tracks
(iii)Storing Cartel Documents ia Pri vate Homes
(iv)Usiag Code Names
(c) Running the Business ofCollusion
(i)Managing the Elimination ofCompetition
(i)Getting OtherMarket Operators on Board
(ii)Achieving Compara bilisy ofthe Products
(iii)Coilection ofData and Circulation ofDetailed Implementation
(iv)Coordi nai ors' and Market Leaders
(ii)Enforcing Cartel Arrangements between the Participants
(ii)Penalties and Compensation Measures
(iii)Threats, Boycotts and CoordínatedAttacks on Competitors
(iii) The Insrability ofCollusive Schemes
(i)Claimsfor Higher Quotas
(ii)Mutual Suspicion ofCheating
(iii)Leniency Prog'rammes as an Additional Factor oflnstability
C. Investigating Hardcore Carteis
(1) The Initiation of a Case: Information Sources
(a) Market Monitoring and Information From Other Investigations
(i)Sector Inquiries
(b) Information Received From OtherAuthorities
(i)Pre-Investigation Exchanges of Information within the European
Competition Network
(ii)Excharige aí Information with Third Country Authoriries
(c) Complaints (Formal and Informal)
(d) lnformanrsfWhistleblowers
(e) Applications under the Leniency Notice
(2) Leniency: Inducing lnsiders to Break Rank
(a) Rationale and Origins of the EU Leniency Policy
(i)The Problem of Detecting and Deterring Cartel Behaviour
(ii)Difficulties in Detecting and ProvingCartels
(iii) The Rarionale for a Leniency Policy: lhe Prisoner's Dilemma
(iv) Introduction and Development of the Commission's
Leniency Policy
(v)Temporal Scope of the Notices
(vi) Structure
(b) lhe 2002 and 2006 Leniency Notices and the Reasons for Revision of
the l996Policy
(i)Content and Application of the 1996 Leniency Notice (:) Basic Principies
(ii)Section B: 75- 100 Per Cent Reduction (Total Exemption) in the Fine
(iii) Section C: 50-75 Per Cent Reduction in the Fine
(iv)Section D: Reductions of 10-50 Per Cent of the Fine
(v)Retracrion of Non-Contestation
(vi)ProceduralAspects (Section E)
(ii)Issues Regarding the Effecriveness of the 1996 Leníency Notice
(iii) The 2002 Leniency Notice and its 2006 Revision
(i)Principies Governing the 2002 Revision ofthe 1996 Leniency Notice
(ii)Changes Introduced ia the 2006 Leniency Notice
(ii:)Content and Implementation ofthe 2002 and2006 Leniency Notices
(iv) Criteria for immunity under the 2002 and 2006
Leniency Notices
(i)Substantive Tests
(ii)The Scope of the Leniency Policy: Are Stand-A lone Concerted
Practices Cc'vered?
(iii)Only One Imrnunity Per Cartel
(iv)Other Conditions Which Must Be Satisfied in Order to Qua4/j'
for Immunity
(v)Reduction in the Fine under the 2002 and 2006 Leniency Notices
(i)Substantive Tests
(ii)Available Bands of Reduction and Relevam Criteria
(iv)Non-Conrestarion ofFacrs is Not Reu'arded Under the 2006
and 2002 Leniency Notices
(v)Signficanr Added Vaiue' Tes:Commission Pracrice
(vi) Judicial Review of the Commission's Leniency Policy Under the
2002 and 2006 Notices
(i)Sign(flcant CourtApproval ofebe Commissions Practice under
the 2002 Leniency Notice
(ii)Legality ofthe Leniency Notice
(iii)The Commissionç Discretion in the Assessment ofLeniency
(iv)Limits to the Commjssjon's Discretion: Manifrst Error
(v) Leniency and Equal Treatment
(vi)Cooperation Under the Leniency Notice Must Be Diffi'renriated
from Cooperation as an 4ttenuating Circwnstance
(vii) Protection of Information Submitted Under the 2002 and 2006
Leniency Notices and Incentives for Applications
(i)A SensitiveAspect ofthe Commission's Leniency Policy
(ii)Identity oflmmunityApplicants
(iii)Limitations in the Conditions ofAccess to Corporate Statements
(iv)Consequences ofViolation ofthe Limitation Imposed in Respece
Of Access to the File
(v)Leniency and Public Access to Documents
(vi)Can Leniency Documents be Protecredfrom PublicAccess?
(vii) Communication ofLeniency Documents Co Other Enforcement
(viii) Disclosure ofLeniency Documents in Civil Litigarion
(c) Leniency and Settlements
(i)Leniency and Settlements are Complementary in Nature
(ii) lhe Reductions Granted Under Each Policy are Cumulative
(iii) Inreractions Between Leniency and Settlements
(d) Leniency within the ECN
(i)Advantages ofthe New System and Measures Taken to Tackle
Porenrial Risks
(ii)Leniency Applications and Article 11 of Regulation 1/2003
(iii)Leniency Applications and Article 12 ofRegularion 1/2003
(iv)Guarantees to be Provided by the Receiving Authority 8.239
(v)Guarantees Regarding Information Relating to Individuais
(vi)Binding Nature ofthe Policy Set Out in the Network Notice
(vii)Leniency Applications and Transmission of Information to
National Courrs
(viii) Where (Best) to File a Leniency Application within the ECN
(ix)Favouring Convergence: lhe ECN Model Leniency Programme
(x) A Significam Tool ofConvergence: lhe 'Summary Application System'
D. The Commission's Powers of Investigarion: Information Requesrs,
lnterviews, Inspections
(1) PreliminaryObservations
(a) Documented Evidence as the Principal Basis for Commission Cartel Decisions
(b) Applicability to rheTransport Sector
(c) Relevance oflxiterpretation Under Regularion 17
(d) Outline for Discussion
(2) General Aspects ofthe Commission's Fact-Finding Powers
(a) Principies ofLaw and Fundamental Rights Applicable to Commission
(i)The Applicability of General Principies of Law and Fundamental
(ii)General Principies and Fundamental Rights Particularly Relevant
to Cartel Investigations
(b) The Rights ofDefence
(i)The Privilege Against Supplyirig Seif-Incrixninating Information
(i)An EU Competition Law Version ofthe Right to Remain Silent
(ii)Compatibility ofthe RightAgainst Self-Jncriminarion as
Esta blished in Orkem with the ECHR and its Case Law
(iii)Precise Scope ofthe PrivilegeAgainse Self-Incrimination: The
Elements of Compulsion' and 2ldmission
(iv)Pre-Existing Documents and Factual Information Must
(ii)Legal Professional Privilege
ei)The Right to the Protection ofLawyer-Client Correspondence
(ii)Scope ofLPP under EU Law
(iii) Summaries ofExternalAdvice Prepared by In-House Counsel May Be Protected
(iv)The Commission Is Not Permitted co Reada Documentfor
Which Legal Pri vilege is Claimed
(u)Procedurefor Claiming Legal Privilege
(vi)Cursory Look'andEnvelope Procedure in Jnspections
(vii) Role ofthe Hea ring Officer
(viii) Abusive Claimsfor Legal Privilege
(iii) lhe Right to Legal Assistance
(iv) lhe Right to be Informed on the Subject Matter and Purpose of
the Investigation
(v)No Right to be Heard Prior to Investigative Measures
(c) Other General Features ofthe Commission's Investigative Powers
(i)Applicarion of the Principie ofProportionality:
Practical Implications
(i)The Investigative Action Must Be Proportionate to the
(iii)The PrincipIe of Proportionality and the Quantiiy of
Information RequestediBurden on the Undertaking
(ii) The Content and Form of Information/Business Records That
May Be Requested
(iii) The Undertakings From Which Information May Be
Sought: Suspected Cartel Participants As Well As Other Parties
(iv) The Territorial Scope of the Commission's Irivestigarion Powers
(i)The Jurisdictional Scope ofthe Commission Investigative
Powers: Subject Marterjurisdiction vs Enforcemenejurisdiction
(v)The Timing ofAny Investigative Steps/Application of Limiration
(vi)The Duty of Active Cooperation and its Implication for Requests
for Information and Inspections
(d) Requests for Information: Article 18
(i)The Use of Requests for Information in Cartel Cases
(ii) Two Types ofRequest for Information: 'Simple Requests' and Requests by Decision
(i)Procedural Requirements: lhe Duty te State the Legal Basis and
Purpose ofthe Request and te Set a Time Limit
(ii) Sanctionsfor Late, Incomplete, Incorrect, orMisleading Replies
(iii)Incomplete or UntruthJiílReplies are Considered te Obstruct the
(iv) Article 18 Requests, the Duty of Cooperation, and Reductions of
Finesfor Voluntary Submissions
(v) Various OtherAspects ofRequeses for Information
(e) Interviews (the Power to Take Statements): Article 19
(ii)Legal Basis
(iii) Possible Interviewees: Natural and Legal Persons
(iv) Procedural Aspects and Rights of the Interviewee
(f) Inspections of Business Premises: Article 20
(i)The Difference Between 'Announced' and 'Unannounced'
(ii) General Aspects Common to Inspections by Authorization and
Inspections by Decision
(i)Commission Inspections and the Principie ofthe Protection of the Private Sphere ofthe Undertaking
(ii)Determining the Addressee ofan Inspection Decision: The
Notion of 'Undertaking'for the Purpose oflnspections
(iii)Notification ofthe Inspection Decision
(iv)The Commission's On-the-SpotPowers
(v)Te enter anypremises, land and means oftransport of undertakings and associations ofundertakings
(vi)'Means oftransport ofundertakings'
(vii)To examine the books and other records rel.ated te the business,
irrespective ofthe medium on which they are stored'
(viii) 'Te take or obtain in anyferm copies of or extractsfrem such
books or records'
(ix)Te seal any businesspremises and books or record.sfor theperiod
and te the extent necessaryfer the inspection'
(x)'Te as/e any representative or member ofstaffof the undertaking
or associatien ofundertakingsfor explanations offacts ar
documents relating te the subject-matter and purpose of the
inspection and te record the answer'
(iii) Orher Practical Aspects Relating to Inspections
(i)Precedure Upen Arrival ofthe Commission Inspectors
(ii)Activity oflnspectors During the Inspection
(iii)Right te Legal Assistance
(iv)Penalties in the Case ofa Refisal te Submit te (or Obstruct) an
Inspection by Decision
(v)Commission Present During Normal Business Hours
(vi) Protocols Made Up During an Inspection and the Possibilities
for SubmittingExculpatory Information
(vii) Taking of Copies and Creatinga Documentlnventory
(viii) Treatment ofBusiness Secrets and Confidentialinformation
(ix)Endofthe Inspection
(x)Post-Inspection Procedure
(iv)The Adoption oflnspection Decisions under Article 20(4)
(i)Requirements Relating to the Substance ofthe Inspection
(ii)Procedural Formalities Relating to theAdoption oflnspection Decisions
(v)Additioiial Substantive and Procedural Aspects oflnspections by
Written Authorization (Announced Inspections)
(i)Substantive Elements oftheAuthorization
(ii)Prior Notice To-Not Consultation Of-the Member State
(vi)Opportunities to Chailenge the Inspection Decision and/or the
Use ofthe Evidence Collected in Inspections
(i)Little Scope in Practicefor Preventing the Inspection From
(ii)Challenging theAdmissibility and Use ofEvidence Collected
(vii)The Role ofthe Member States in Commission Inspections
Under Article 20
(i)General Duty iv ProvideAssistance
(ii)Role in Case ofOpposition 8.404
(iii)Review by National Courts is Limitedto theArbitrariness and
Proportionality ofthe Coercive Measures
(iv)Coercive Measures Can Lead to San ctions Under National
Law-EvenAgainst Pri vate Persons
(viii)Inspections Carried Out by the Competition Authorities ofthe
Member States on Behalfofthe Commission: Article 22(2)
(i)Member States are Obligedto Execute Article 22(2)
Inspections When Requested
(ii)Inspections Under A rticle 22 are Executed Under National Law
(iii)Commission Officials May Particiate in the Inspection
CarriedOutBy the Member State
(g) Inspections on Other Premises (Private Homes): Article 21
(i)Rationale and Use
(i)Meaning of other premises land,andMeans of Transport
(ii)Applicability ofPrinciles ofLaw and Fundamental Rights
(iii)Reasonable Suspicion'Aboutlnformation BeingStoredat the
(iv)Only To Be Usedin Case of 'Serious Violations
(ii) Legal Framework
(i)A Two-PartBasis Requiredfor Executingan Inspection under
(iii) Procedural Aspects
(i)The Commission Decision
(ii)Authorization by a NationalJudicialAuthority
(iii) Addressee ofthe Decision
(iv)Notificarion ofthe Decision and theJudicial Authorization
(vi)Assistance by Officials From tbe NationalAuthorities
(vii) SanctionsforNon-compliance, Pursuane to NationalLaw
(iv) Other Aspects
(i)Right to LegalAssistance
(ii)A Duty ofActive Cooperation for theAddressee?
(h) European and International Cooperation in Cartel Investigations
(i)European Cooperation
(i)The ECN
(ii)Cooperation with the ESA
(ii)International Cooperation, Multilateral and Bilateral
(i)Multilateral Cooperation
(ii)Bilateral Cooperation
E. Evidence in Cartel Cases
(1) Introduction
(2) What Needs to be Proven
(a) lhe Concept of Cartel Offence
(b) lhe EU Courts' Purposive View of What Constitutes lllegal 'Cartel' Behaviour
(c) Agreernent vs Concerted Practice
(d) Cartels are Irifringements By Object: No Need to Prove Actual Effects
e) No Market Definition Required
f) No Need to Demonstrate the Precise Mechanism By Which the Restrictive Object was Attained
g) No Requirement to Prove Subjective lnterit
(h) Complex Infringement
(i)Single and Continuous Infringement
(i)Liability for a Single and Continuous Infringement
(ii) Consequences ofLack ofAwareness of the Overali Conduct
(iii)Single' and 'Continuous'
(iv)The 'Single' Narure ofan Infringement
(v)The 'Continuous' Nature ofan Infringement
(vi)The 'Repeated' Nature ofan Infringement
(vii) Duration ofan Undertaking's Participarion in an Infringement
(3)The Burden ofProof
(a)The Burden ofProofon the Commission
(b) 'Shifting' ofthe Burden ofProof
(4) The Standard ofProof
a)The EU courts reluctance to use the Term 'Standard of Proof'
(b) What Matters is the Balance of Evidence as aWhole
(5)Admissibility of evidence
(a) Evidence Collected or Used in Contravention of General Principies or
Fundamental Rights is Not Admissible
(i)Information Covered by Legal Privilege
(ii)Self-Incriminating Information
(iii) Evidence on Which the Undertakings Have Not Been Heard is Inadmissible
(b) Documents Obtained in an Inspection ThatTurned Ourto be
Unlawfui are Inadmissible
(c) Documents Which Do Not FalI Witihin the Scope ofan Inspectien
Decision are Inadmissible
(d) Confidential Information is Admissible as Evidence
(e)Evidence Provided Oraily is Admissible
(f) Ano nyrnous Evidence Can Be Admissible
(g) Lack ofCross-Exarnination ofWitnesses Does Not Render Their
Staternents Inadmissibie
(6) Probative Value of Evidence
(a) Whether, On Its Face, the Evidence Appears Sound and Reliable
(b) The Time When the Evidence Carne Into Being
(c) The Levei ofDetail of the Evidence
(d) The Source of the Information Has Direct Knowledge
(e) Evidence Which Coes Against the Interests of the Source Providing ir
has Greater Probative Value
(f) Evidence From an Undertaking llhat Has Resolved to Cooperare With
the Investigation Has High Probative Value
(g) Evidence Provided Where There is a Risk ofSanction
(h) Evidence Provided After Mature Reflection is More Credible
(1)Evidence or Statements Provided by Executives ofCompanies are of
Greater Probative Value
(j)Evidence Suppiied by One Entity May Be Used Against Another
(k) Motives of the Witness
(1)Information Provided by Applicants for Immunity or for a Reduction
of Fines
(rn) Anonymous or Unidentified Sources of Evidence
(7) Types of Evidence
(a) Docurnentary Evidence
(b) Oral Evidence
(i)Quaiified Obiigation to HearWitnesses
(ii) Traditional Reliance on Documentary Evidence: Increased Use of Oral Evidence
(c)Direct and indirect (Circurnstanrial) Evidence
(d) When is Corroboration Necessary?
(e)Econornic Evidence
(i)The Use of Economic Evidence as ari Excuipatory Factor
E EstablishingLiability
(1) The 'Undertaking' as the Infringing Entity
(2) Attribution ofLiability to the Undertaking as a Whole: Underlying Reasons
(3) Principal Grounds for Liability
(a) Parent Company Liability: The Concept ofthe 'Actuai Exercise of Decisive Influence
(i)The Parent Company's Shareholding in the Subsidiary
(i)Subsidiary Wholly Owned (orAlmost Wholly Owned) by the
Parent: Existence ofa Rebuttable Presumption
(ii)Subsidiary Owned (Signficant1y) Less Tban 100 Per Cent by
the Parent
(iii) JointVentures
(ii)The Articles ofAssociationfStatutes
(iii) The Parent Entity Being Active on the Sarne or Adjacent Markets
(iv) The Use of the Sarne Cornmercial Name By the Parent and Subsidiary
(v)Instructions From a Parent Company to a Subsidiary
(vi) Functional Links ]Ihrough Personnel
(vii) lhe Attitude of the Parent Company During the Administrative
(b) Sister Companies
(4) Liability in Cases ofSuccession
(a) Cases ofChange of Legal Denomination, Resulting in the Dissolurion
of the Previous Legal Person
b) Transfer of a Liabie Entity, Which Renia.ins in Existence, To Another
(c) Transfer ofAssets/Activities to Another Undertaking, the Entity
Previously Operating the Business Remaining in Existence
(d) Transfer of a Legal Entity or ofAssets/Activities, the Entity Previously
Operating the Business Ceasing to Exist
(e) Scenarios oflntra-Group Restructuring and Succession
(5) Voiuntary Acceptance ofLiability by the Acquiring Underraking
(6) Determination ofLiabiiity and the Appiication of the Leniency Notice
G. Cartel Fines
(1) Overview
(2) The Basic Amount of the Fine
(a) Calculation of the Value of Sales
(i)General Principies
(ii)Sales of Products or Services To Wbich the lnfringement Relates
(iii) Sales in the Relevam Geographic AreaWithin the EEA
(iv) Last Fuil Year Before the End of the Infringement
(b) Gravity: 'lhe Percentage Appiicabie to the Value of Sales
(1)General Principies
(ii)Nature ofthe Infringernent
(iii) Geographic Scope
(iv) Combined Market Share
(c) Duration of the Infringement
(i)General Principies
(ii)Previous Practice
(iii) Method for Calculating Duration
(d) Additional Amount
(i)General Principies
(e) Conciusion on the BasicAmount
(3) Individuaiizing 'Subjective' Responsibiliry: Aggravating and Mitigating
(a) Individual Conduct vs Overail Gravity of the Infringemenr
(b) lhe Commission is Bound by the Fining Guidelines, But Nor By Prior
(c) Method ofCalculation When Both Aggravating and Attenuating Circumstances Appiy
(i)Aggravating Circumsrarices
(i)General Principies
(ii)Repeated Infringernents ofthe Sarne Type by the Sarne
(iii)Reflisai to Cooperate With or Obstruction of the Cornrnission in
carrying Out its Investigations
(iv)Role of Leader in, or instigator of the Infringement
(v) Steps to Coerce Other Undertakings andior Retaliarory Measures
Agaínst Other Undertakings with a View to Enforcing the
Practices Constituting the Infringement
(vi)OtherAggravating Circumstances
(ii)Mitigating Circumstances
(i)Terminarion of the InfringementAs Soon As the Com mission
Intervenes (NotApplicable to Carteis)
(ii)Infringement Committedas a Result ofNegligence
(iii)Substantially Limited Involvement in the Infringement
(iv)Effective Cooperation by the Undertaking Outside the Scope of
the Leniency Notice and Beyondlts Legal Obligation To Do So
(v)Anti-Competitive Conduct Authorized ar Encouraged by Public
Authorities ar by Legislation 8.638
(vi)OtherAcceptedAttenuating Circumstances
'vü) RejectedArguments
Specific Increase for Deterrence
(a) Increase for Undertakings With a Large Turnover
(i)Concept and Rationale
(ii)Commission's Practice
(b) Legality of the Deterrence Multiplying Factor
(c)Lirnited Scope of the Duty to State Reasons
(d) Basis for the Assessment and Levei of the Deterrence
Multiplying Factor
(e) Increase to Exceed the Improper Gains
Legal Maxirnum of 10 Per Cent ofAnnual Group Turnover
(a) Upper Limit Ser By Article 23(2)
(b) 10 Per Cent of the Total Turnover
(c) Preceding Business Year
(d) Application to Each Infringement
(e) Joint and Several Liability Within the Sarne Underraking
(f)The 10 Per Cent Cap is Caiculated Before Leniency
(g) The 10 Per Cent Cap Applies Only to the Final Arnount
(Before Leniency)
(h) Irnpact of the Legal Maximum
Application of the Leniency Notice
Application of the 10 Per Cent Reduction of the Settlernent Notice
Abiiiry to Pay
(a)Inahiliry to Pay Claims Systernatically Rejecred before 2006 Fining
(b) Application of Inabiliry to Pay Reductions by the Commission
(c)Procedure for Inability to Pay Requests
(d) Comrnission Anaiysis oflnabiity to Pay Claims under the 2006
Fining Guidelines
(e) Court Review
(f) Assessrnent of the Ability to Pay Poiicy
Other Factors That May Be Taken inro Account
(a) Ad HocAdjustrnents
(b) Poor Financial Situation and Previous Payrnent of Fines in Other
(c)Excessive Durarion ofAdministrarive Procedure
H. Procedural Aspects of the Adoption of Decisions in Cartel Cases and
'Direct Settlements'
(1) Main Common Aspects of the Adoption of Cartel Decisions
(a) The Commission '2011 Best Practices' and Outline of the Procedure
Leading to a Decision
(i)The Adoption of a Cartel Decision Foliows a Model That Is
Common For Ali Commission Decisions
(ii) General Outline of the Standard Procedure Followed Between the
Fact-Finding Stage and the Final Decision—and the Alternative of
the Setdement Procedure
(iii) lhe Commission May Halt an Investigation at Any Stage
(b) Particular Aspects Relating to Access to File in Cartel Cases
(c) lhe Statement ofObjections and Indications on the Parameters
of the Fine
(d) The Oral Hearing and State ofPlay Meetings(2) Direct Settiements in Cartel Cases
(a) The Lead Up to the Adoption of the 2008 System of'Direct
Settlements' in Cartel Cases
(b) Sequence of the Regular Procedure and Potential Benefits of the
Sertlement Process
(c) lhe Main Features of the Settlement System
(i)Stakes on Both Sides: the Parties and the Commission
(ii) Not To Be Mistaken for 'Commitment' Decisions
(iii) Based on a 'Common Understanding' Berween the Parties and the
Commission, But Nota Negotiation
(d) lhe Settlement Procedure Dissected
(i)Based on a Fui! Investigation
(ii)Deciding lhat a Case is Fit for Settlement/ Initia! Contact with
the Parties
(iii)Start of the Settlement Process
(iv)Three Rounds ofMeetings
(v)Confidentiaiity ofDiscussions
(vi)Formal Settiement Submission, Statement ofübjections, Decision
(vii)Interaction with Leriiency
(viii) Lessons from Settlement DecisionsfHybrid Cases
(ix)Miscellaneous Aspects
9. Vertical Agreements
Andrei Gurin and Luc Peeperkorn
A. Introduction
(1) Applicability ofArticle 101 to Vertical Restraints
(2) EarlyApplication ofArticie 101 to Vertical Restraints
(3) Theory ofActive/Passive Sales
(4) System ofBlock Exemption Regulations
(5) Green Paper on Vertical Restraints
(6) Two Council Regulations Enabling the Adoption of the
Commission's Policy
(7) A NewType ofBlock Exemption Reguiation and Guidelines
B. lhe New Block Exemption Regulation and Guidelines
(1) Background
(2)The De Minimis Notice
(3)Agency Agreements
(b)Agency Agreements in the Vertical Restraints Guidelines
(c)AgencyAgreements and the Internet
(4)Subcontracting Agreements
(5)lhe Underiying Philosophy of the BER and the Vertical Restraints Guidelines
(6)The Scope of the BER and Guidelines
(a)Definition ofVerticai Agreements
(b)Vertical Agreements between Competitors
(e)Vertical Agreements Conciuded by Associations ofRetailers
(d) Vertical Agreements Containing IP Rights Provisions(e) lhe Interface Between the BER and Other Biock Exemption Regulations
(7)Hardcore Restrictions under Article 4 of the BER
(a)Vertical Price Fixing Under Article 4(a)
(b) Territorial and Customer Sales Restrictions under Article 4(b)
(c)Selective Distribution Systems and Sales Restrictions under Article 4
(d)Internet Selling and Sales Restrictions Under Article 4
(e)The Combination of Selective and Exclusive Distribution
(g)Individual Assessment ofHardcore Resale Restrictions
(8)ExcludedRestrictions under Article 5 of the BER
(a) Non-Compete Obligations Exceeding Five Years
(b) Post-Term Non-Compete Obiigations
(c)Boycott Under Selective Distribution
(9)Transitionai Period and Expiry Date of the BER
(10)Withdrawal of the beneíit of the BER
(11)Disappiication of the BER
(12)Market Share 'Thresho!ds and Market Share Calculatjon
(13)lhe Framework ofAnalysis for Individual Assessment
(a) Anti-Competitive Effects
(b) Efhciencies
C. Analysis of Different Categories of Vertical Restraints
(a) Market Position of the Supplier
(b) Incidence and Duration of the Single-Branding Obligation(e) Market Position ofCompetitors
(d) Barriers to Entry
(e) Countervailing Power
(f) Level ofTrade
(g)Possibie Efliciencies
(2)Exclusive Distribution
(a)Supplier's Market Position
(b) Competi tors' Market Position
(e) Buying Power
(d) Levei ofTrade
(e) Maturity of the Market
(f) Combinarion with Exclusive Sourcing
(g)Possible Efficiencies
(3)Exclusive Customer Allocation
(4)Selective Distribution
(a) Qualitative vs Quantitative Selective Distribution
(b) Quandtative Selective Distribution
(c)Supplier's Market Position
(d) Competitors' Market Position
(e)Barriers to Entry
(f) Buying Power
(g) Maturity ofthe Market
(h) Possible Efriciencies
(6)Exclusive Supply
(a) Buyer's Market Share
(b) Duration ofthe Agreement
(e) Competitors' Market Position
(d) Countervailing Power
(e) Level ofTrade and Nature ofthe Product
(f)Possible Efficiencies
(7)Upfront Access Payments
(8)Category Management Agreements
(10)Recommended and Maximum Resale Prices
10. Intelectual Property
Kevin Coates, Lars Kjølbye, and Luc Peeperkorn
A. Introduction
(1) Overview
(2) Purpose ofIP Rights
(3) lhe Relationship berween IP Protection and EU Law
(a) IP Protecrion and the Free Movement Provisions
(b) IP Prorection and the Competition Rules
(i)General Approach
(ii) Biock Exernptions
B. IP Rights and EU Law
(1) Introduction
(2) Existence vs Exercise and the Specific Subject Matter ofan IP Right
(a)Existence and Exercise
(b) Specific Subject Matter
(3) The Specific Subject MatteroflP Rights
(b) Know-How
(c) Copyright
(d) Trademarks
(e)Plant Breeders' Rights
(4) Exhaustion ofIP Rights
(a) Exhaustion Requires Consent
(i)Centrafarm v Sterling Drug
(ii) Consent Does Not HaveTo Be Explicit
(b) For a Saie to Exhaust IP Rights Ir Is Not Necessary for rhat Saie to be
Made in a Jurisdiction Where Ir Enjoys IP Right Protection
(i)Merck vStephar
(c) Exhaustion Requires the Consent of the Right Holder Even ifthe
Goods were Lawfully Put on the Market in Another Member State
Without That Consent
(ii) Keurkoop/Nancy Kean Gfts
(d) Exhaustion Requires anActual Saie
(e) Exhaustion Depends on the Specific Subject Matter of the Right in
(i)Warner v Christiansen
(f) Exhaustion for the Purposes of EU Law Requires Use in the EEA
(g) Exhaustion and Licensing Under the Competition Rules
(5) Exhaustion Concept in EU IP Legislation
C. Technology Transfer Agreements
(1) Introduction
(2) lhe Basic Framework and Underlying Philosophy of the TTBER and the
TechnologyTransfer Guidelines
(3) The Scope of the TTBER and the Technology Transfer Guidelines
(a) Agreements for the Production ofContract Products
(b) Technology Transfer Agreements
(c) lhe Interface between the TTBER and Other Biock Exemptions
(4) Competitors vs Non-Competitors
(5) The Hardcore Restrictions
(a) Price Fixing
(b) Output Lirnitations
(c) Territorial and Customer Sales Restrictions
(1)Territorial and Customer Sales Restrictions between
(ii)Territorial and Customer Sales Restrictions between
(d) Restrictions on the Use of Own Technology or to
(6) Excluded Restrictions
(7) lhe Safe Harbours
(8) Withdrawal and Disappiication
(9) Application Outside the Scope of the Biock Exemption
(b) RoyakyObiigarions
(c)Exclusive Licences and Sales Restrictions
(d) Output Restrictions
(e)Field of Use Restrictions
(f)CaptivelJse Restrictions
(g) Tying and Bundling
(h) Exclusive Deaiing
(j)Licensing of Future Deveiopments
(10) TechnoiogyPools
(a) lhe Nature of the Pooled Technologies
(b) Competition Concerns Relating to the Creation of the Pool
(c)AssessmentofIndividual Restraints
D. Trademark Licences
(1) Licences and Assignment
(a)Territorial Protection
(b) Prohibition on Competing Products
(c) No-Chalienge Clauses (Ownership)
(d) No-Chailenge Clauses (Validity)
(e) Prohibition on Sub- Licensing or Assignment
(O Quality Control Measures
(2) Trademark Delimitation Agreements
(a)Market Partitioning
(b) Confusion ofMarks
E. Copyright
(1) EU Directives Relating to Copyright
(2) Territorial Protection through Exclusive Licences
(a)Exclusive Territory Does Not Necessarily Infringe
Article 101(1)
(b) Coilecrive Refusais to License
(c) Specific Subject Matter ofCopyright and Article 101(1)
(3) CollectingSocieties
(a) Arrists' Licences to a Collecring Society
(b) Licensing Agreements Between Collecting Societies
(c)Licences from Collecting Societies to Manufacturers
E Article 102
(1) Introduction
(2) IP and Market Definition
(3) IP and Dominance
(4) Abuse
(a)Refusals to License IP Rights
(i)The IBM Undertaking
(iv)IMS Heafrh
(b) Licensing ofIP Rights and Article 102
(c) Misuse ofRegulatory Process
(d) Conclusions on Abuses


11. Financial Services
Nicho/as Banasevic, Stephen Ryan, and Rita Wezenbeek
A. Introduction
(1) General Remarks on Financial Services
(2) Developments in the Commission's Approach
(3) lhe Post-2007 Financial Crisis and Consequences for Competition in the
Financial Sector
(4) Competition and Regulation in the Financial Sector
(5) Social Security
B. Banking
(1) PreliminaryRemarks
(2) Payment Systems
(a) Introduction to Payment Systems
(b) Regulation, SeIf-Regulation, and Competition Law Enforcement
(c)Pricing Issues (Interchange Fees)
(d) Issues Relating to Access
(i)SWIFT/La Poste
(ii)Visa International and Visa Europe
(iii)Groupement des Cartes Bancaires
(iv)European Payments Council
(3) Non-Payment Banking Antitrust Cases
(4) Banking Mergers
(b) Turnover Calculation for Credit Institutions and Other Financial
(c) lhe Approach to Market Definition
(d) Significant Cases
(e) Nationalization and Recapitalizarion
(f) Looking Forward
C. Capital Markets
(1) Preliminary Remarks
(a) Importance of Clearing
(2) Antitrust Cases
(b) Recenr Enforcement
(c) Standard & Poor's
(d) Reuters Instruments Codes (RICs)
(e) Credit Default Swaps
(3) Deutsche Biirse/NYSE Euronext Merger Case
(b) lhe Parties and the Deal
(c) Market Definition
(d) CompetitiveAssessment
(e)Claimed Efficiencies
(f) Remedies
(g) Conclusion
D. Insurance
(1) lntroductory/Pre!iminary Remarks
(a) Some Characteristics oflnsurance
(b) Market Definition Issues in the Insurance Sector
(2) 'lhe Commission's Antitrust Policy in the Insurance Sector
(a) Commission Antitrust Case Law on Insurance
(b) Comjnission Biock Exemption Regulation for the Insurance Sector
(c)Sector lnquiry in Business Insurance
(3) Specific Types ofPractices in the Insurance Sector
(a) Agreements on Prices
(b) Jointly Produced Compilations, Tables, and Studies
(c) Standard Policy Clauses
(d) Co-Insurance and Co-Reinsurance Poois
(i) Pools in the Block Exemption
(ii) Com mission Decisions and Other Cases on Pools
(e) Security Devices
(f) Agreements on Settlemenr ofClaims and on Registers of
(g) Insurance Distriburion
E. Conclusions
12. Energy
Céline Gauer and Lars Kjølbye
A. Introduction
(1) Liberalization and the Regulatory Framework
(2) Regulation and Competition Enforcement
(3) Findings ofthe Commission's Energy Sector lnquiry
(a) Market Concentration
(b) Vertical Foreclosure
(c) Market Integration
(d) Downstream Markets
B. MarkerDefinition
(1) Product Market
(a) Gas Markets
(b) Electricity Markets
2) Geographic Market
(a) Exploration, Production, and Saies ofCrude Ou and Gas
(b) Supply Markets
(c) Transport Markets
(d) Flexibility of Markets in Gas
(3) Conciusion
C. Obstacles to Market Integration and Discrimination
(1) Horizontal Market Partitioning
(2) Curtailment ofNetworks
(3) Territorial Restrictions and Destination Clauses in Vertical Agreements
(4) Conciusion
D. Vertical Contractual Restrainrs
(1) Use Restrictions
(2) Customer Foreclosure
(3) Exclusive Distribution and Volume Reduction Clauses
(4) Conclusion
E. Horizontal Contractual Resrraints
(1) Non-Compete Clauses
(2) Joint Investment and Joint Operation ofProduction Capaciry
(3) Network Effects and Minority Sharehoidings
(4) JointPurchasing
(5) JointSelling
(a) PureJointSelling
(b) Joirit Selling as Part ofSupply Chain
(6) Exchange oflnformation
(7) Conclusion
E Network Foreclosure
(1) Refusal to Supply by Vertically lntegrated Undertakings
(a) Access to Transport Networks is Indispensable
(b) Refusais to Access Networks in Various Forms
(c) Elimination ofEifective Competition and Objective Justification
(2) Input Foreclosure
(a) Long-Term Capacity Reservarions: lhe GDF and E. ONGas Cases
(b) Pre-Emptive Capacity Reservation: lhe CEZCase
(a) 'lhe RWE and ENlCases
(b) lhe GDFand E. ONGas Foreclosure Cases
(c) lhe CEZCase
(4) Conclusion
G. Exploitative Abuses
(1) Energy Markets are Prone to Exploirative Conduct
(2) lhe Commission's Practice
(a) E.ON Electriciry: lhe German Electriciry Wholesale
Market Case
(b) E.ON Electricity: lhe German Electricity Balancing Case
(3) Conclusion
H. State Measures and Article 106 TFEU
I.Final Remarks
(1) lhe Energy Sector: Five Years After the Energy Sector Inquiry
(2) Competition Policy: lhe Contriburion ofEnergy Cases
(a) NewTypes of Infringements
(b) First Structural Remedies
(c) Deterrence vs Swift Impact on the Market
13. Communications (Telecoms and Internet) David Gabathuler and Eduardo Martinez Rivero
A. Introduction
B. EU Regulatory Framework for Electronic Communication
(1) Introduction
(2) Opening the Market to Competition (1 990s)
(a)Progressive Liberal ization (Relianceon Article 106 Directives)
(b) Harmonization Measures
(3) lhe Regulatory Framework
(a) lhe Regulatory Package
(b) Functioning of the Regulatory Framework
(c) Article 7 consultarion mechanism
(d) Article 7 Oversighr Extended to Regulatory Remedies
(e)Functional Separarion
(O Body of European Regulators for Electronic Communications
(4) Specific Regularory Measures
(a) International Mobile Roamirig
(b) Radio Spectrum Policy
(5) Compieting the Telecoms Singk Market: Commission's 'Connected
Continent' Proposa]
C. Move from Copper Networks to Next Generation Access Networks
(1) lhe Emergence ofNext Generation Access Networks
(2) lhe NGA Recornmendation
(3) lhe Recommendation on Non-Discrimination and Cosring
D. Interaction Between & Post Competition Enforcement
and ExAnte Regulation
(1) lhe Applicability of the Competition Rules to the Electronic
Communications Sector
(2) ACompiementaryApproach
(3) Resoiving Conflicts Between Sector Regulation and Competition
(4) lhe Influence of Com petitiort Law Principies on the
Regulatory Framework
(5) Economic Incentives to Invest
(6) No Exemption for Emerging Markets
(7) Ex Ante Regulation as a Mirigating Circumstance
E. Commission's Antitrust Enforcement in the Electronic
Communications Sector
(1) Margin Squeeze: An AutonomousType of Abuse
(a) Deutsche Telekom (2003)
(b) Telefónica (2007)
(2) Predarory Pricing: Leveraging of Incumbent Power into an Emerging
(3) Refusal to Suppiy: Competition Enforcement in Addition to Regulatory
(4) Market Sharing: Article 101 Violation Extending to More than One
Member State
E Mergers in the Electronic Communications Sector
(1) Introduction
(2) Mobile Telecommunications
(a)Horizontal Overlap
(b) Vertical Relarionships
(3) Fixed-Line Telecommun ications
(4) Alternative tnfrastructure: Cable and Sareilite
(b) Sateilite
(5) Some Notabie Merger Decisions in Other Markets
G. Internet
(1) Overview
(2) Ner Neutraliry Regulation
(3) Proposed Net Neurraliry Measures ar EU Level
(4) Siruation ar the National Level
(5) Net Neutral iry and Com petition Law Enforcement
(6) Google: Online Search and Advcrtising
H. Other Developments
(1) Network Sharing in MobileTeiephony
(2) State Aid to Broadband
(3) Standard Essential IPR Relating to Mobile Teiephony Standards
14. Media
KrzysztofKuik andAnthony Dawes
A. Introduction
(1) Main Features ofthe Media Sector
(ii)Audiovisual lndustry
(iii)BookProduction, Publishing, and Distribution
(2) Regulatory Framework
(3) Lssues Arismg Across the Media Sector
(i)Enforcement at Both EU and National Levei
(ii)Cultural Diversity
(v)Two-Sided Markets
(4) Structure
B. Competition Issues underArticie 101
(1) Horizontal Agreements
(1)Contractual Systems ofFixed Book Prices
(ii)Arrangements Akin to Price Fixing
(i)Agreements ar Concerted Practices Seeking to Influence the
Retail Prices ofPhysical Recordings
(ii)Agreements or Concerted Practices Restr-icting the Freedom to
Grant Rebates
(iii)Concerted Practices Leadi ng to an Increase in Retail Prices
(b) Customer and Territorial Aliocation
(1)Restrictions on the Coilective Licensing ofContent
(ii)Restrictions on the Abiiity of Right Hoiders to Enrrust the
Licensing ofContent to the Person ofTheir Choice
(iii)Agreements or Concerted Practices Resulting in Territorial
(c) Joint Seiling ofTelevision Rights
(i)Does Joint Selling ofRights Fali Within Article 101(1)?
(ii)Horizontal aspectes of joint selling of rights
(iii)Specificity ofSport
(iv)Absence ofDownsrream Exclusivity
(d) Joint Purchasing ofTeievision Rights
(i)Appreciable Restriction ofCompetition
(ii)Main Competirion Concerns
(iii)Joint Purchasing of Sports Rights by Pubiic Broadcasters
(2) Vertical Agreements
(a) ExclusivityCiauses Over Prernium Content
(i)Commissions Policy Objective
(ii)'lhe ApproachinARD
(iii)A More General Framework ofAssessment
(iv)Possible Limits on the Duration and Scope ofSuch
(v)The [mpact of the FA Premier League and Murphy Cases on the
Levei ofRemuneration a Right Holder Can Obtain in Return
for Exclusivity
(b) Most-Favoured-Nation Clauses
(i)Most-Favoured-Supplier Clauses
(ii)Most-Favoured-Customer Clauses
(iii)Cross-Platforrn Parity Clauses
(c)Territorial Restrictions
(i)Territorial Restrictions in Bilateral Reciprocal Agreements
Between CotlectingSocieties
(ii)Absolute Territorial Protection Before FA Premier League and
(iii)Absolute Territorial Protection After FA Premier League and
(iv)Territorial Restrictions in the Online World
C. Competition Issues underArticle 102
(1) MarketDeflnition
(2) Dominance
(i)Assessing the Economic Strength of a Content Provider
(ii)Assessing the Economic Strength of a Broadcaster
(3) Abuse
(a) UnfairTrading Conditions
(b) ExcessivePricing
(c)Discriminatory Pricing
(d) Exclusionary Abuses
D.Tlhe Competition Directive: Market Entry, Special or Exclusive Rights,
and Spectrum Assignments
(1) Mernber States Prohibited From GrantingExclusive or Special Rights
(2) Member States Required to Assign Spectrum on the Basis ofAppropriare
E. Mergers in the Media Sector
(1) General Remarks
(iiDigital Markers
(iv)Vertical Issues
(2) The Scope of the Competition Assessment under the Merger Regulation
(3) Concentrations in Selected Media Industries
(a) Concentrations in the Music lndustry
(i)Music Publishing
(i)Relevant Product Markets
(ii)Relevant Geographic Markets
(iii)The Assessmenr of Non- Coo rdinatedEffects
(iv)The Assessment of Coordinated Effects
(ii)Relevant Geographic Markets
(iii)TheAssessment ofNon-CoordinatedEjffects
(iv)TheAssessment ofcoordinatedEffects
(b) Concentrations
in the Audiovisual Industry
(i) Relevant Product Markets
(ii) Relevam Geograpbic Markets
(iii) The Assessment ofPay-TV Mergers
(i)Prohibitions Following the Lack of Satisfactory Remedies
(ii)Focus on Vertical Issues (Input Foreclosure)
(iii)Vertical Issues Remain in Mergers with Limited Horizontal Overlaps
(c) Concentrations
in the Book Publishing Industry (Including E-Books)
(i) Relevant Product Markets
(ii) Relevant Geographic Markets
(iii) TheAssessrnent ofNon-Coordinated Effects
(iv) The Assessment ofCoordinated Effects
(d) Concentrations
in the Written Press
(i) Relevam Product Markets
(ii) Relevant Geographic Markets
(iii) The Assessment ofNon-Coordinated Effects
(iv) The Assessment ofCoordinated Effects
(v) The Assessment ofConglomerate Effects
in Advertising Markets
(i) Product Markets
(ii) Relevant Geographic Markets
(iii) The Assessnien t of Coordinated/Non-Coordinated Effects
(iv) Vertical Effects
(4) Conclusion
15. Transport
I-Iubert de Broca, Marta Mielecka Riga, and Anatoly Suboà
A. The Economic Importance ofTransport
B. Competition Law Framework
(1) Historical Evolution
(2) Modernization of Competition Rules in the Transport Sector
C. AirTransport
(1) Introduction
(2) Legal Framework
(a)Liberal ization of the EUAviation Market
(b) lnternationalAspects
(i)Air Service Agreements with Third Countries
(ii)Open Skies Agreement and Orher Comprehensive Air
Transport Agreements
(c) Application of EU Competition Rules in Air Transport
(3) Market Definition in Airline Cases
(b) Airlransport ofPassengers
(i)Supply of Air Transport Services to End Customers
(i) Starting Point: Origin-and-Destination (O&D) Approach
(ii)Type ofPassenger
(iii)Airport Substiiutabi1iy
(iv)Non-Stop vs One-Stop Flights
(v)Charter Services
(vi)Inter-Modal Competition
(ii)Supply ofAirline Seats to Tour Operators
(c) AirTransportof Cargo
(4) Competitive Assessment ofAirline Alliances and Mergers
(b) Determination ofAffected Markets
(c) Counterfacrual
(d) Assessment of Restrictions ofCompetition
(i)Restriction ofCompetition by Object
(ii)Restriction ofCompeticion by Effect
(ii)General Assessment Framework Under Article 101(3)
(iv)Pass-on to Consumers
(vi)No Elimination ofCompetition
(f) Commirments
(ii)Sior Releases
(iii)Special Prorate Agreements
(iv)Fare Combinability Agreements
(v)Frequent Flyer Programmes
(vi)Intermodal Agreements
(5) Prohibited Airline Mergers: Ryanair/Aer Lingus and Olympic/Aegean
(6) Hardcore Restrictions
(a)Price Fixing
(b) Market Sharing
(7) Abuses of a Dominant Position
D. MaritimeTransport
(1) Introduction
(2) The Repeal of the Conference Biock Exemption
(3) The Exemption ofMaritime Consortia
(a) Background
(b) Objectives aí the Latest Review
(c) The Scope of rue Exemption
(d) The Content of the Exemption
(e) lhe Conditions for the Exemption
(i)Market Sharelhreshold
(ii)Notice Period
(4) The Maritime Guidelines
(5) Individual Exemption
(6) Market Definirion
(7) Agreements and Abuses of Dominant Position
E. lnlandTransport
(1) Road Transport
(a) Transport ofGoods
(b) Transport of Passengers;
(2) Inland Waterways
(3) Rail Transport
(a) Transport ofGoods by Rail
(b) Transport ofPasserigers by Rail
(c) EU Liberalization in the Railway Sector: lhe Railway Packages
(i)First Railway Package
(ii)Second Railway Package
(iii)Third Railway Package
(iv)Rail Recast Directive
(v)Fourth Railway Package
(vi)Railway Interoperabiliry
(4) Controlled Competition for PublicTransport: Regulation 1370/2007
(5) Antitrust Rules Applicable to Inland Transport
(a) Artide 2 ofRegulation 169/2009: Technical Agreements
(b) Article 3 ofRegulation 169/2009: Exemption for Groups ofSmall
and Medium-Sized Companies
(6) Market Definition
(b) Passenger Transport
(7) Prohibited Agreements
(8) Abuses of a Dominant Position
F.Transport Infrastructure (and Related Services)
(1) Applicabiliry of Competition Rules to Transport Infrastructure (and
Related Services)
(a) EconomicActiviry
(b) Services of General Economic Interest
(2) Airport Infrastructure
(a) Market Definition
(i)Product Market
(ii)Geographic Market
(b) Discriminatory Landing Fees
(c) Access to Airport Services (Ground-Handling)
(3) Maritime Infrastrucrure
(a) Market Definition
(i)Product Market
(ii)Geographic Market
(b) Competition Concerns
16. Pharma
HaraldMische, Elena Kamilarova, and Dominik Schnichels
A. Introductjon
B. Overview of the Pharma Sector
(1) Pharmaceutjcals
(2) Market Players
(i) Manufacrurers
(ii)Generic Companies
(3) Regulatory Framework
(iv)'Data Exclusivity' and 'Marketing Exclusivity
(v)National Pricing and Reimbursement Rules
(4) Antitrust Enforcemerir Priorities before the Sector Inquiry
(5) Sector Inquiry and FolIow-Up
(i)Sector Inquiry
C. Market Definition
(1)Pharmaceutical Markets in Case Law
(2)ATC Classification
(3)Medicine Characteristics
(5)Producr Life Cycle
(6)Future Markets
(7)Distribution Channels
(8)Upstream Markets
(10) Geographic Markets
(11)RecentAntitrust Decisions
D. Dominance in Ahusive Conduct Cases
(1) Commission Practice
(2) National Cases
(i)UK Cases (Reckitt Benckiser and Napp)
(ii)The French Sanofi-Aventís Case
E. Restrictive Practices Between Originators and Generic Companies
(1) Main Competidon Concerns and the Economic and Legal Context of
Generic Competition
(a) Main Competidori Concerns
(b) Dynamics ofCompetition Between Originator and Generic
(e) The Com petitive Process Leading to Generic Entry
(2) Pay-for-Delay Settlement Agreements
(ii)Forms of Value Transfer
(iii)OverviewofUS and EU Debate
(a) Pay-for-Delay Settlements in the US
(i)Hatch-Waxrnan Act
(ii)Potential Scope of the Patent Test
(iii)Presumprion ofRestraint ofTrade
(iv)US Supreme Court's 'Rule of Reason' Test
(b) Pay-for-Delay Patent SetrLement Agreements under Article 101
(i)Review of Patent Settlements Under the 2008/2009
Sector Inquiry
(ii)Pay-for-Restriction in Settlement Agreements
(iii)Commission Decision in Lundbeck
(iv)Commission Decision in Fentanyl
(v)EU and UK Investigations in Servier and Paroxetíne Under
Article 101
(3) Acquisition ofPatent Rights and Exclusive Licensing
(a) Acquisition of API Technology
(b) Merger Regulation vsArticles 101 and 102
(c) RelevantJurisprudence
(d) Exclusive Licensing
(4) Exclusive SupplyAgreement
ECompetition Between Manufacturers of Generic Medicines
(1) National Pricing Systems and ilheir Impact on Generic Competition
(2) lhe German Sickness Funds and the Dutch Preference Policy
G. Case Law under Article 102 and National Law: Abuses by
(1) Mis!eading Representations in Government Procedures and Misuse of
(a) Misleading Representations in Government Procedures
(b) Misuse of Procedures
(2) Acquisition of Competing API Techno!ogy (Servier Investigation)
(3) Pay-for-Delay Settlement Agreements (Servier and Paroxetine
(4) Exclusionary Pricing Discounts in the Hospital Segment
(the OFT's Napp Case)
(5) Withdrawal and De! isting of a Product (the OFT's Reckitt
Benekiser Case)
(6) Denigration (the LAutorité de Ia concurrence's Schering-Plough and
Sanofi-Aventis Cases)
(7) Abusive Practices Against Competing Originator Companies
(Boehringer Case)
H. Parailel Trade in Pharmaceuricals
(1) Rationale
(a) lhe Specificity of the EU Interna! Market
(b) lhe Interna! Market Objective
(2) Restrictions of Paralie! Trade and Article 101: Supply Quotas and
Dual Pricing
(a) Supply Quotas and Article 101
(i)EU Case Law
(ii)National Case Law
(b) Dual Pricing
(1)EU Case Law: Restricrion by Object
(ii)Special Characteristics of the Pharmaceutical Sector
(iii)National Case Law
(3) Restrictions of Para!lel Trade and Article 102: Supp!y Quotas
(a) EU Case Law: Absence of a Per Se Abuse Under Article 102
(b) National Case Law
(i)The Case Law of the French Competition Authoriry
(ii) lhe Case Law ofthe Spanish Competition Authority
(iii) The Case Law of the Belgian Competition Authority
(iv) Conclusion


17. State Aid
Tim Maxian Rusche, ClaireMicheau, Henri Pffaut, and Koen Van de Casteele
A. Why State Aid Control?
(1) TheOrigiris
(2) Constant Conflict of Objectives
(3) lhe 2012-2014 State Aid Modernization
B. Notion of State Aid
(1) Aid Granted by the State or Through State Resources
(a)'Or' is to be Read as 'and'
(b) State Resources ...May Be Private (As Long As ]Ihey Are
Under Control)
(2) Advantage
(a) Beneficiary of the Advantage
(i)Notion ofUndertaking
(ii)Indirect Beneficiary
(b) Notion ofAdvantage
(ii)The Market Economy Investor Principie/Private
Creditor Principie
(í)The Private Investor Principie
(ii)Private Creditor Principie
(iii)Saie ofState Properly
(v)Infrastructure Projects
(a)Notion of Selectivity
(b) Tax Selectivity
(i)Material Selectivity
(i)De Jure and De Facto Selectivity
(ii)The Test of Tax Selectivity
(iii)Discretionary Power
(iv)Justification by the Logic of the Tax System
(ii)Regional Selectivity
(4) Distortion of Competi tion and Effect on Trade
(a) Affectation ofComperition and Trade
(b) De Minimis Regulation
(iv)Transparent Aid
(v)Appiication in Time
(viii) Cumulation
(ix)Controversy on the Nature of the De Minimis Rale
(c) New SGEI De Minimis Regularion
C. Compatibility of State Aid with the Internal Market
(1) RefinedEconomicApproach
(a) Well-Defined Objective ofCommon Interest
(b) Weli-Designed lnstrument
(c)Balancing of the Positive and Negative Effecrs/Overaii
Positive Balance
(d) TbeWayForward
2) General Principies ofNecessity (Incentive Effect) and Proportionality
(3) Compatibility on the Basis ofArticle 107(2)
(a) Aid Having a Social Character Granted to Individual Consumers
(b) Aid to Make Good Damage Caused by Natural Disasters or
Exceptional Occurrences
(c) Aid to Compensate for the Economic Disadvaritages Caused by the Division ofGermany
(4) Compatibility Declared by the Commission on the Basis ofArticle 107(3)
(a) Aid tu Prornote the Economic Deveiopment of Arcas where the Standard of Living is Abnormally Low or Where There is Serious
Urideremployment (Art 107(3) (a))
(b) Aid tu Promote the Execurion ofan Importam Project ofCommon
European Interest (Art 107(3)(b) first alternative)
(c) Aid to Remedy a Serious Disturbance in the Economy of a Member
State (Art 107(3)(b) second alternative)
(d) Aid to Promore Culture and Heritage Conservation (Art 107(3)(d))
(e) Aid to Facilitate the Development of Certain Economic Activities or
ofCertain EconomicAreas (Art 107(3)(c))
(1)State Aid for Environmental Protection
(ii)Aid for R&D 17.263
(i)StagecfR&D 17.264
(ii)Incentive EJfect ofRDAid
(iii)Eligible Costs
(iv)Aidfiir Rescuing and Restructuring Firms iv Dff1cuttv
(iii)Other SoftLawofaHorizontal Narure
(1v)Sofr Law Concerning Only Certain Sectors
(f) Otber Categories to be Specified by Decision ofthe Council
(Art 107(3)(e))
(g) Aid for the Coordínation ofTransporr
(5) Compatibility Declared by the Council: Article 108 (2)
(6) Servjces of General Econonilc Interest
(a)Introduction: Definition and Legal Basis
(b) Before Ajtmark: Compensation and State Aid Approach(e) TheAltmarkRuling
(d) Anaiysis ofAltrnark: Positive Effects and Open Questions
(e) The SGEI Package
(i)The Monti-Kroes Package
(ii)The New Package
(i)Existence of na SGEl
(ii)Entrustment Aet
(iii)Parameters of Compensation
(iv)Avoichznce of Overcompensation
Selection ofthe Provider
vi)De Minimis Regulation
(vii) Block Exemption
(viii) Framework
(7) lhe General Biock Exemption Regulation
D. State Aid Procedure
(1) Legal Basis and Applicable Texts ofHard and SoEr Law
(2) Notification and Assessment ofNew Aid (Chapter II Procedural
(a) Objective ofrhe Notification and Assessment Procedure
(b) Legal Basis and the Principie ofNorification Requirement
(c) Steps in the Notification and Assessment Procedure
(i)Preparation and Filing of Notification
(iii)Preiiminary Investigation
(iv)Formal Investigation Proceedings
(d) Internal Commission Decision-Making Procedure
(e)Delays and Mistakes in the Notification Procedure and How to AvoidThem
(f) Moniroring ofApproved and Notification-Exempted State Aid
(3) Unlawful Aid (Chapter III ofthe Procedural Regulation)(a) The Case Law on UnlawfulAid
(b) The Codiflcation ofthe Case Law in the Procedural Regulation
(e) Innovation in the Procedural Regulation: lhe Recoverylnjunction
(d) Recovery ofUnlawful and incompatible Aid
(i)Legal Basis and General Principies ofRecovery
(i)Legal Basis of Reco vey
(ii)Immediate and EJfect-ive Recovery According to
(iii)Imposition of Compound Interest
(ii)Defences Against Recovery
(i)Defences That Can Be Invoked by the Member State
('ii)Defences Jhat Can Be Invoked by the Beneficiary
(iii)Specific Problems and Situations ofRecovery
(i)Dornestic MotivationforRecovery
(ii)Recovery and Insolvency Proceedings
(iii)lhe Correct Addressee for the Recovery Claim
(iv)Recovery Pracrice ofthe Cominission
(4) Existi ngAid (Chapter IV Procedural Regulation)
(a) lhe Distinction Between New and ExistingAid
(b) Procedure for Existi ngAid
(e) lhe Trearment ofBorderline Cases
(5) lhe Rights oflhird Parties, in Particular: lhe State Aid Complaint
(Chapter V Procedural Regulation)
(a)Righrs ofThird Parties in General
(b) StateAid Complaints
(c) Chaliengeable Acts
(i)Existing Aid
(ii)Opening Decisions
(iv)Administrative Letters in Response to Complaints
(6) Action Seeking the Suspension and Provisional Recovery of State Aid in
Front ofNational Courts
(7) lhe Scope ofJudicial Review
(a) Judicial Review: FailuretoAct
(b) Judicial Review: Interim Relief
(c) Judicial Review: Action for annulment

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