EC Competition Law Text, Cases, and Materials

by Jones, Alison; Sufrin, Brenda

Edition: 2nd

ISBN13: 9780199269976

ISBN10: 0199269971

Format: Paperback

Pub. Date: 2004-12-23

Publisher(s): Oxford University Press

Upgraded Edition: Click here!

Other versions by this Author

List Price: ~~$98.03~~

Rent Textbook

Select for Price

Add to Cart

There was a problem. Please try again later.

New Textbook

We're Sorry
Sold Out

Used Textbook

We're Sorry
Sold Out

eTextbook

We're Sorry
Not Available

Summary

The second edition of the innovative and well respected EC Competition Law provides a comprehensive guide to the study of EC competition law, combining the strengths of the modern textbook and the traditional materials book. Extracts from key cases and legislation are presented alongside a detailed explanatory text which clearly sets out the bases and objectives of the EC competition rules. Also included is a wide selection of critical writings giving an invaluable overview of the most important perspectives on the subject and illuminating the wider socio-economic context of EC competition law. The book deals comprehensively with recent fundamental reforms.

Author Biography

Brenda Sufrin is Professor of law at Bristol University. Alison Jones is Lectuer in Law at Kings College London.

Acknowledgements

xlix

Table of European Cases

liii

Table of International Cases

lxxxv

Table of Legislation

lxxxvii

Table of European and International Treaties

xcv

Table of Equivalences

xcix

Bibliography

cvii

List of Abbreviations

cix

Introduction to Competition Law

(79)

Introduction

(1)

The Objectives of Competition Law

(16)

Economic Efficiency

(1)

The Maintenance of Effective Competition

(1)

Basic Economic Concepts

(1)

Demand Curves and Consumer Surplus

(1)

Elasticity of Demand

(2)

Cross-elasticity of Demand

(1)

Profit Maximization

(1)

Economies of Scale

(1)

Perfect Competition

(2)

Monopoly

(3)

Dynamic Efficiency

(1)

Oligopoly

(1)

Perfect Competition, Monopoly, and Competition in the Real World

(3)

Other Goals of Competition Law

(1)

A Sole Goal for Competition Law?

(1)

Preservation of Liberty

(1)

Protecting Competitor and Fair Competition

(1)

Socio-political Issues

(1)

The EU Dimension

(1)

The Chicago View

(1)

Conclusions

(1)

US Law

(3)

Schools of Antitrust Analysis

(9)

The Structure → Conduct → Performance Paradigm and the Harvard School

(1)

The Chicago School

(7)

Post-Chicago

(1)

EC Competition Law

(13)

General

(3)

The Objectives of the European Community and EC Competition Policy

(1)

The Objectives of the European Community

(2)

The Objectives of EC Competition Policy

(6)

The Limits of Competition, Public Services, and Regulation

(1)

The Limits of Competition

(1)

Competition and Regulation

(1)

The New Economy

(1)

Competition Law and the International Context

(1)

Techniques of Competition Law

(2)

Market Power, Market Definition, and Barriers to Entry

(32)

Market Power

(2)

Market Definition and EC Competition Law

(1)

The Importance of Market Definition

(1)

Relevant Market Definition in the Case Law of the Court of Justice

(2)

The Commission Notice on the Definition of the Relevant Market for the Purposes of Community Competition Law

(1)

The Publication of the Notice

(1)

The Definition of the Relevant Market in the Notice

(1)

Demand and Supply Substitution

(1)

Demand Substitution

(1)

Ways of Measuring Demand Substitution

(4)

The Cellophone Fallacy

(5)

Characteristics and Intended Use

(1)

Chains of Substitution

(1)

Primary and Secondary Markets

(1)

Distinct Groups of Customers

(1)

Markets in the New Economy

(1)

The Structure of Supply and Demand

(1)

Supply Substitution

(2)

The Geographic Market

(3)

Barriers to Entry

(1)

The Role of Barriers to Entry

(1)

The Definition of a Barrier to Entry

(7)

Conclusions

(1)

Further Reading

(2)

The European Community and the Competition Provisions

(21)

Introduction to the European Community

(11)

General

(1)

The Sources of Community Law

(1)

Introduction

(1)

The Treaty establishing the European Community

(1)

The EC Institutions

(1)

The Council

(1)

The Commission

(2)

The Advisory Committee on Monopolies and Restrictive Trade Practices and Dominant Positions and the Advisory Committee on Concentrations

(1)

Community Acts

(1)

The Case Law of the European Court

(2)

The General Principles of Community Law

(1)

A New Legal Order of International Law

(1)

Direct Effect

(1)

Supremacy

(1)

Article 234 (ex Article 177) of the EC Treaty

(1)

The Competition Provisions

(8)

General

(1)

Article 3(1)(g) of the Treaty

(1)

The Main Treaty Provisions and the Merger Regulation

(1)

Special Sectors

(1)

The Substantive Provisions of the Treaty

(1)

Article 81 (ex Article 85)

(1)

Article 82 (ex Article 86)

(1)

Articles 86 and 31 (ex Articles 90 and 37)

(1)

The Procedural Provisions

(1)

Article 83 (ex Article 87)

(1)

Implementing Legislation

(1)

The Merger Regulation

(1)

Block Exemptions

(1)

Regulations and Other Measures Adopted by the Commission

(1)

Article 84 (ex Article 88)

(1)

Article 85 (ex Article 89)

(1)

Other Relevant Treaty Provisions

(1)

The Competition Rules and the European Economic Area

(1)

Modernization

(1)

Further Reading

100

(1)

Article 81 (Formerly Article 85): The Elements

101

(79)

Introduction

101

(1)

The Text of Article 81

101

(1)

The Scheme of Article 81

102

(4)

The Three Paragraphs

102

(1)

The Prohibition

102

(1)

Nullity

103

(1)

Legal Exception---Declaration of Inapplicability

103

(1)

The Consequences of Infringement

103

(1)

Nullity and Private Proceedings between the Parties to a Contract

104

(1)

Investigation, Detection, and Penalties---the Commission

104

(1)

Investigation, Detection, and Penalties---the National Competition Authorities

104

(1)

Damages and other Private Proceedings

105

(1)

Burden and Standard of Proof

105

(1)

The Interpretation and Application of Article 81(1)

106

(73)

General

106

(1)

A Note on Interpretation

106

(1)

Economics and Article 81

106

(1)

The Meaning of `Undertaking'

107

(1)

Every Entity Engaged in an Economic Activity

107

(1)

The Notion of an Undertaking is a Relative Concept

107

(1)

The Legal Status or Form or the Entity is Immaterial

108

(2)

Public Bodies and Bodies Performing Public Functions

110

(8)

Public Undertakings and Article 86 (ex Article 90)

118

(1)

Employees and Trade Unions

118

(3)

Succession

121

(2)

Single Economic Entity

123

(1)

What is a Single Economic Entity?

123

(2)

Consequences of the Single Economic Entity Doctrine

125

(2)

The Meaning of `Agreement', `Decision', and `Concerted Practice'

127

(1)

Introduction

127

(1)

Agreement

128

(1)

Horizontal and Vertical Agreements

128

(2)

Agreements may be Caught Whatever their Form

130

(1)

Collective Bargaining Agreements

131

(2)

Complex Arrangements

133

(1)

Agreement and Unilateral Conduct

134

(13)

Agreements Concluded by Employees

147

(1)

Recommendations by Bodies Constituted under Statutory Powers

147

(1)

Decisions by Associations of Undertakings

147

(1)

What is an Association of Undertakings?

147

(1)

Decisions by Associations

148

(1)

Medium for a Cartel

148

(1)

Trade Association Recommendations

148

(1)

Medium for Exchange of Information

149

(1)

Certification Schemes

149

(1)

The Trade Association's Constitution

150

(1)

Governmental Intervention

150

(1)

Concerted Practices

150

(1)

The Nature of a Concerted Practice

150

(1)

The Distinction between Agreement and Concerted Practices

150

(4)

Direct or Indirect Contact

154

(2)

Participation in Meetings

156

(1)

Parallel Behaviour and Concerted Practices and Other Issues

157

(1)

Object or Effect the Prevention, Restriction, or Distortion of Competition

158

(1)

An Appreciable Effect on Competition

159

(1)

Volk v. Vervaecke

159

(1)

Understanding the Requirement of Appreciability

159

(1)

Commission Notice on Agreements of Minor Importance Which do not Appreciably Restrict Competition under Article 81(1) (De Minimis)

160

(2)

Networks of Agreements

162

(1)

Outgrowing the Notice

163

(1)

The Importance of Market Shares and Hard-Core Restraints

163

(3)

Effect of the Notice

166

(2)

An Appreciable Effect on Trade between Member States

168

(1)

Jurisdictional Limit

168

(1)

The Tests

169

(1)

Pattern of Trade Test

169

(1)

An Increase in Trade

170

(1)

Partitioning of the Common Market

171

(2)

Agreements Operating in One Member State

173

(1)

Restrictions on Competition and Restrictions on Trade

174

(1)

Agreements which Appreciably Affect Trade between Member States

175

(1)

The Relationship between Community and National Law

176

(1)

Agreements Required by National Legislation

176

(1)

Commission Notices

177

(1)

Extraterritoriality

178

(1)

Summary of Agreements Falling Outside Article 81(1)

178

(1)

Article 81(2)

179

(1)

Further Reading

179

(1)

The Relationship Between Article 81(1) and Article 81(3) of the Treaty

180

(73)

Introduction and Background

180

(7)

Article 81(1) and Article 81(3)

180

(1)

The Interpretation of `Object or Effect is the Prevention, Restriction, or Distortion of Competition'---The Broad Approach

181

(1)

The Drawbacks of a Broad Interpretation of Article 81(1)

181

(1)

Section 1 of the Sherman Act

182

(1)

Parallels Between EC and US Law

183

(1)

The Legal Exception

183

(1)

The Role of Article 81(3)

184

(1)

The Central Role of the Commission

185

(1)

The Need for Change

186

(1)

Article 81(1), Agreements which have as their Object or Effect the Prevention, Restriction, or Distortion of Competition

187

(45)

General

187

(1)

Object or Effect

187

(1)

Alternative, not Cumulative, Requirements

187

(1)

The Object of the Agreement

188

(1)

The Effect of the Agreement

189

(1)

Agreements that Restrict Competition by Object

190

(1)

Horizontal Agreements

190

(1)

Vertical Agreements

191

(1)

General

191

(1)

Agreements Imposing Minimum Retail Prices on Distributors

192

(1)

Agreements Granting a Distributor Absolute Territorial Protection

192

(7)

Intellectual Property Licensing Agreements

199

(1)

Restrictions by Object and `Hard-Core' Restraints

200

(1)

A Criticism?

201

(1)

Agreements that Restrict Competition by Effect

201

(1)

General

201

(1)

A Rejection of the Rule of Reason

202

(3)

Appraisal of an Agreement in its Legal and Economic Context

205

(7)

Ancillary Restraints

212

(1)

Remia and Nutricia

213

(1)

Pronuptia

214

(2)

Gottrup-klim

216

(2)

The Commission Article 81(3) Notice and Metropole

218

(6)

Weighing Non-Competition Factors? The Wouters Case

224

(6)

The Commission's Approach to Article 81(1)

230

(2)

Article 81(3)

232

(19)

General

232

(1)

The Interpretation and Application of Article 81(3)

232

(1)

The Objectives of Article 81(3)

232

(1)

The Impact of Article 81(1)

232

(1)

Forum for Weighing Anti- and Pro-Competitive Aspects of the Agreement

232

(1)

Socio-Political Factors

233

(1)

Satisfaction of the Four Criteria Set Out in Article 81(3)

234

(1)

Criterion 1: The Agreement Must lead to an Improvement in the Production or Distribution of Goods or the Promotion of Technical or Economic Progress

235

(5)

Criterion 2: Allowing Consumers a Fair Share of the Resulting Benefit

240

(1)

Criterion 3: Indispensable Restrictions

241

(2)

Criterion 4: The Agreement Must Not Afford the Parties the Possibility of Substantially Eliminating Competition

243

(2)

Application in Individual Cases

245

(1)

Block Exemptions

246

(1)

General

246

(1)

Current Block Exemptions

246

(1)

Council Regulations

246

(1)

Commission Regulations

246

(2)

The Format of a Block Exemption

248

(1)

Block Exemptions are Directly Applicable

248

(1)

Market Share Thresholds

249

(1)

Opposition Procedure

249

(1)

Withdrawal of Block Exemptions

249

(1)

Unilateral Action and Article 81(3)

250

(1)

The Relationship Between Article 81(3) and Article 82

251

(1)

Conclusions

251

(1)

Further Reading

251

(2)

Article 82: The Elements

253

(44)

Introduction

253

(1)

The Text of Article 82

254

(1)

The Scheme of Article 82

255

(3)

The Prohibition

255

(2)

Consequences of Infringement

257

(1)

Investigation, Fines, and other Remedies

257

(1)

Private Action

257

(1)

The Interpretation and Application of Article 82

258

(31)

The Meaning of One or More Undertakings

258

(1)

General

258

(1)

Public Bodies and Bodies Performing Public Functions

258

(1)

One or More Undertakings---Collective Dominance

259

(1)

Dominant Position

260

(1)

What is Meant by a `Dominant Position'?

260

(2)

The Legal Definition

262

(4)

Super-dominance

266

(1)

Assessing Dominance

266

(1)

A Dominant Position within a Substantial Part of the Common Market

267

(1)

Purpose of the Requirement

267

(1)

Meaning of a Substantial Part of the Common Market

268

(1)

Relevance of Volume of Production

268

(1)

A Member State is Likely to be a Substantial Part of the Common Market

268

(1)

Transport Cases

269

(1)

The Meaning of Abuse

270

(1)

Introduction

270

(1)

Exploitative and Anti-competitive Abuses

270

(7)

Categories of Abuse are Not Mutually Exclusive

277

(1)

The Broad Nature of the Concept

278

(1)

Abuse Need Not be Causally Connected to the Dominant Position

278

(1)

The Special Responsibility of Dominant Undertakings

279

(1)

Abuse as an Objective Concept

280

(1)

Distinguishing Competition on the Merits from Anti-competitive Behaviour

281

(1)

Objective Justification, Proportionality, and the Right of Dominant Undertakings to Defend their Commercial Interests

282

(5)

An Effect on Trade Between Member States

287

(2)

The Relationship between Article 82 and Article 81

289

(4)

Comparison between Article 82 and Section 2 of the US Sherman Act

293

(3)

Conclusions

296

(1)

Further Reading

296

(1)

Article 82: Establishing Dominance

297

(74)

Introduction

297

(1)

Market Definition

298

(39)

General

298

(2)

The Product Market

300

(1)

Demand Substitution

300

(1)

Interchangeability

300

(7)

The SSNIP Test

307

(1)

Product Characteristics, Price, and Intended Use

308

(1)

The Structure of Supply and Demand

309

(1)

Markets Created by State Regulation

310

(1)

Chains of Substitution and Multiple Applications

310

(3)

Raw Materials

313

(1)

Markets for `Inputs'

313

(1)

Aftermarkets

314

(6)

Markets in the New Economy

320

(1)

Markets on the Buying Side

321

(3)

Supply Substitution

324

(2)

The Geographic Market

326

(5)

The Temporal Market

331

(1)

The Tetra Pak II Case

331

(6)

Assessing Market Power

337

(32)

General

337

(2)

Market Share

339

(8)

Other Factors Indicating Dominance

347

(1)

General

347

(1)

Some Leading Cases

348

(1)

United Brands

348

(2)

Hoffmann-La Roche

350

(1)

Michelin

351

(1)

Eurofix---Bauco/Hilti

352

(1)

Soda Ash--Solvay

353

(2)

Summary of `Other Factors Indicating Dominance'

355

(1)

Statutory Monopoly, Legal Regulation, Intellectual Property Rights

355

(1)

Superior Technology and Efficiency

356

(1)

Vertical Integration

357

(1)

Economies of Scale

357

(1)

Access to Financial Resources and the Need for Investment

358

(1)

Access to Key Inputs

359

(1)

Advertising, Reputation, Product Differentiation

359

(1)

Overall Size and Strength and Range of Products

360

(1)

Profits

361

(1)

Performance Indicators

362

(1)

Opportunity Costs

362

(1)

The Undertaking's Own Assessment of its Position

362

(1)

Conduct

363

(1)

An Unavoidable Trading Partner

363

(1)

Power over Locked-in Customers and on Aftermarkets

364

(3)

Dominant Positions in the New Economy

367

(2)

Conclusion

369

(1)

Further Reading

369

(2)

Conduct Which Can Be An Abuse

371

(159)

Introduction

371

(1)

Abuse and the Degree of Dominance

372

(1)

Dominance and Abuse on Different Markets

373

(6)

Pricing Policies

379

(71)

General

379

(1)

Unfairly High or Low Pricing

379

(1)

Excessive Prices on the Supply Side

379

(1)

Exploitative Excessive Prices

379

(6)

Anti-Competitive Excessive Prices

385

(1)

Low Prices on the Buying Side

385

(1)

Predatory Pricing

385

(1)

General

385

(2)

Cost Levels

387

(1)

The Areeda--Turner Test

388

(1)

Problems with the Areeda--Turner Test

389

(1)

The AKZO Case

390

(2)

Problems with the Criteria Laid Down in AKZO

392

(2)

Incremental Costs, Multi-Product Firms, and Cross-Subsidies

394

(3)

Recoupment

397

(1)

General

397

(1)

The Tetra Pak II Case

398

(3)

Predatory Pricing in New Economy Markets

401

(1)

The Digital Undertaking

402

(1)

Transformation Costs and `Price' or `Margin' Squeezing

402

(1)

Limit Pricing

403

(1)

Selective Low Pricing

403

(6)

Price Discrimination

409

(1)

General

409

(2)

Primary Line and Secondary Line Injury

411

(1)

Article 82(c)

412

(1)

General

412

(1)

The Application of Article 82(2) to Discounts and Rebates

412

(1)

Article 82(c) and the Transport Sector

413

(1)

Article 82(c) and Statutory Monopolists

413

(1)

Geographical Price Discrimination

414

(3)

Delivered Pricing

417

(1)

Competitive Disadvantage and Article 82(c)

418

(1)

Discount and Rebate Schemes

419

(1)

General

419

(2)

Quantity (Volume) Discounts, Loyalty Rebates, and Exclusive Contracts

421

(3)

The Cases

424

(1)

The European Sugar Cartel Case: Rebates in Return for Exclusive Purchasing

424

(1)

Hoffmann-La Roche: The Abusive Nature of Loyalty Rebates

424

(2)

BPB Industries: Quantity Discounts and Loyalty Rebates to Fight New Competition

426

(3)

The Soda Ash Cases: Top-Slice Rebates

429

(1)

Michelin: Target Discounts

429

(3)

Michelin II: Standardized Volume Targets and Other Loyalty-inducing Payments

432

(8)

Virgin/British Airways: Target Incentives on the Buying Side

440

(6)

Is the Present Law on Discounts and Rebates Satisfactory?

446

(3)

Comparison with US Law on Discounts and Rebates Under Section 2 of the Sherman Act

449

(1)

Aggregated Rebates

450

(1)

Exclusive Contracts

450

(16)

General

450

(2)

Tying

452

(1)

General

452

(1)

Commercial Reasons for Tying

453

(1)

Market Definition, Ancillary Markets, Consumables, and Aftermarkets

454

(3)

Tying in Aftermarkets where the Primary Market is Competitive

457

(1)

Tying in Software Markets and the Microsoft Case

458

(3)

Conclusions

461

(1)

Freezer Exclusivity

462

(4)

Refusals to Supply

466

(52)

General

466

(1)

The Commercial Solvents Case: Refusal to Supply in Order to Exclude Competitors from Ancillary Markets

467

(2)

Refusal to Supply in Response to an Attack on the Dominant Undertaking's Commercial Interests

469

(3)

The Refusal to Supply Spare Parts

472

(3)

Refusal to Supply and the `Essential Facilities' Concept

475

(1)

General

475

(1)

Access to Facilities and Resources

475

(1)

The Development of the `Essential Facilities' Doctrine in EC Law

476

(1)

General

476

(1)

The Commission Decisions on Essential Facilities

476

(6)

Issues in the Essential Facilities Doctrine

482

(3)

The European Night Services Case

485

(1)

The Oscar Bronner Case

486

(6)

Refusal to Supply in the Financial Industry

492

(1)

Refusal to Supply and Intellectual Property Rights

493

(1)

General

493

(1)

The Car Parts Cases

493

(2)

The Magill Case

495

(5)

The Ladbroke Case

500

(2)

The IMS Case

502

(1)

The Sequence of Events in IMS

502

(1)

The Commission's IMS/NDC Decision

503

(7)

Justifications for Refusing Access

510

(1)

Interoperability

511

(3)

The Essential Facilities Doctrine in US Law

514

(4)

Conclusion on Refusals to Supply

518

(1)

Imposing Unfair or Discriminatory Trading Conditions and Entering into Restrictive Agreements

518

(2)

Export and Bans and Other Conduct Hindering Inter-Member State Trade

520

(1)

The Acquisition of Intellectual Property Rights

521

(1)

Vertical and Horizontal Integration

522

(1)

Pursuit of Legal Proceedings, Vexatious Litigation, and Enforcing Legal Rights

522

(2)

Other Exclusionary Practices

524

(2)

General

524

(1)

Strategic Entry Deterrence and Raising Rivals' Costs

525

(1)

Inefficiency

526

(1)

Abuse and Collective Dominance

526

(1)

Conclusion

527

(1)

Further Reading

527

(3)

Competition, the State, and Public Undertakings: Article 86

530

(66)

Introduction

530

(9)

General

530

(3)

The Limits of Competition Law

533

(4)

Some Concepts

537

(1)

Services of General Economic Interest

537

(1)

Services of General Interest

538

(1)

Public Services

538

(1)

Universal Service

539

(1)

Article 10

539

(1)

Article 86

540

(47)

The Objectives of Article 86

541

(1)

The Format of Article 86

541

(1)

Article 86(1): Prohibition Addressed to Member States

541

(1)

Article 86(2): Provision Addressed to Undertakings Providing for Limited Immunity from the Treaty Rules

542

(1)

Article 86(3): Policing and Legislative Powers of the Commission

542

(1)

Article 86(1)

542

(1)

Definitions

542

(1)

`Public Undertakings'

543

(1)

Undertakings Granted Special or Exclusive Rights

543

(3)

`Measures'

546

(1)

Measures which are Forbidden by Article 86(1)

546

(20)

Summary of the Measures which Make Abuse Unavoidable or Create a Situation in which the Undertaking is Led to Abuse its Dominant Position

566

(2)

Article 86(2)

568

(1)

The Purpose of Article 86(2)

568

(1)

Undertakings having the Character of a Revenue Producing Monopoly

569

(1)

Undertakings Entrusted with the Operation of Services of General Economic Interest

569

(1)

`Undertakings Entrusted with . . .'

569

(1)

Operation of Services of General Economic Interest

570

(1)

Obstruct the Performance of the Particular Tasks Assigned to Them

571

(12)

No Effect on Trade Contrary to the Interests of the Community

583

(1)

The Direct Effect of Article 86(1) and (2)

584

(1)

Article 86(1)

584

(1)

Article 86(2)

584

(1)

Article 86(3)

585

(1)

The Ambit of the Provision

585

(1)

Decisions

585

(1)

Directives

585

(2)

Services of General Economic Interest and State Aids

587

(1)

Services of General (Economic) Interest and Political and Legal Developments

588

(6)

Article 16 EC

588

(1)

The Background to Article 16

588

(1)

Article 16 and its Place in the Treaty

589

(1)

The Interpretation and Meaning of Article 16

590

(1)

Article 36 of the Charter

591

(1)

The Commission's 2000 Communication on Services of General Interest

592

(1)

The Commission's Green Paper of 2003

593

(1)

The Commission's White Paper of 2004

593

(1)

Conclusion

594

(1)

Further Reading

594

(2)

Distribution Agreements

596

(91)

Introduction

596

(22)

General

596

(1)

Methods of Distribution

597

(1)

Factors Affecting Choice

597

(1)

Vertical Integration

597

(1)

Agency

597

(1)

Distribution through Independent Distributors

598

(3)

Competition Rules and Distribution

601

(1)

The Impact of the Competition Rules on Methods of Distribution

601

(1)

Vertical Integration

601

(1)

Agency

601

(1)

Genuine and Non-Genuine Agency Agreements

601

(1)

The Determining Factor---Risk

602

(2)

Distribution Agreements

604

(1)

Restraints on Conduct and Restrictions of Competition---the Problem

604

(1)

The Positive Effects of Vertical Restraints

604

(3)

The Negative Effects of Vertical Restraints

607

(6)

Per se Illegality and the Rule of Reason---the Approach in the US

613

(5)

The Community Approach---an Overview

618

(8)

The Background: Single Market Project and Restrictions on Economic Freedom

618

(2)

Criticisms of this Approach

620

(4)

The New More Economic Approach: The Block Exemption and Reform

624

(1)

Methodology

625

(1)

Distribution Agreements and Article 81(1) of the Treaty

626

(28)

General

626

(2)

Object or Effect the Prevention, Restriction, or Distortion of Competition

628

(1)

The Object or Effect

628

(1)

Vertical Agreements which have as their Object the Prevention, Restriction, or Distortion of Competition

628

(1)

Absolute Territorial Protection and Export Bans

628

(3)

Resale Price Maintenance

631

(3)

The Irrelevance of the Effect on Competition in Object Cases

634

(1)

Agreements which Have as their Effect the Prevention, Restriction, or Distortion of Competition

635

(1)

Introduction

635

(1)

Single Branding Agreements and Delimitis

636

(4)

Exclusive Distribution Agreements and STM

640

(1)

Selective Distribution Agreements and Metro

641

(9)

Franchising Agreements and Pronuptia de Paris

650

(4)

Other Restraints

654

(1)

Article 81(3)

654

(30)

General

654

(1)

The Old Block Exemptions

654

(1)

The Verticals Regulation---Regulation 2790/1999

655

(1)

The Background

655

(3)

The Recitals

658

(1)

Article 1---Definitions

658

(1)

Article 2---the Main Exemption

659

(1)

An Umbrella Exemption Applying to All Vertical Agreements

659

(1)

Association of Retailers of Goods

660

(1)

Provisions Relating to the Assignment of Intellectual Property Rights (IPRs)

661

(2)

Agreements between Competing Undertakings

663

(1)

Agreements Falling Within the Scope of Another Block Exemption

664

(1)

Article 3---the Market Share Cap

664

(1)

The 30 per cent Threshold

664

(1)

Defining the Market

665

(1)

Exceeding the Market Shares

665

(1)

Portfolio of Products Distributed Through the Same Distribution System

666

(1)

Article 4---Hard-core Restrictions

666

(1)

The Block Exemption is Not Applicable to Vertical Agreements Containing Hard-core Restraints

666

(1)

Article 4(a): Fixed or Minimum Sale Prices

667

(1)

Article 4(b): Restrictions of the Territory or the Customers to Whom the Buyer may Sell

668

(3)

Article 4(c) and (d): Restrictions in Selective Distribution Systems

671

(1)

Article 4(e): Restrictions on Suppliers of Components

672

(1)

Article 5---Severable, Non-exempted Obligations

672

(1)

Obligations which are Not Exempted but which are Severable

672

(1)

Article 5(a): Non-compete Obligations

673

(1)

Article 5(b): Non-compete Obligations after the Termination of the Agreement

673

(1)

Article 5(c): Non-compete Obligations and Selective Distribution Systems

673

(1)

Article 6---Withdrawal of the Block Exemption by the Commission

674

(1)

Article 7---Withdrawal of the Block Exemption by a National Competition Authority

674

(1)

Article 8---Regulations to Deal with Networks of Agreements

675

(1)

Articles 9, 10, and 11---Market Share, Turnover, Transitional Provisions, and Connected Undertakings

676

(1)

Article 12---the Old Block Exemptions

676

(1)

Article 13---Commencement and Expiry

676

(1)

The Motor Vehicle Distribution Block Exemption

676

(1)

Article 81(3)---Individual Assessment

677

(1)

Introduction

677

(1)

Hard-Core Restraints

678

(2)

Non-Compete Provisions and Other Restraints

680

(4)

Article 82 and Distribution

684

(1)

Conclusions and the Future

685

(1)

Further Reading

686

(1)

Intellectual Property Rights

687

(84)

Introduction

687

(1)

Types of Intellectual Property Rights

688

(3)

Patents

688

(1)

Trade Marks

689

(1)

689

(1)

Designs

690

(1)

Know-how

690

(1)

Miscellaneous

691

(1)

Plant Breeders' Rights

691

(1)

Semi-conductor Topographies

691

(1)

Databases

691

(1)

Computer Software

691

(1)

The Relationship Between Intellectual Property Rights and Competition Law

691

(2)

Relevant Provisions of the EC Treaty other than the Competition Articles

693

(1)

The Case Law of the Court: Existence, Exercise, and the Exhaustion of Rights

694

(4)

Exploiting Intellectual Property Rights by Licensing

698

(5)

General

698

(1)

Commercial Considerations in Licences

699

(1)

General

699

(1)

Royalties

699

(1)

Territorial Restrictions on Production: Exclusive and Sole Licences

699

(1)

Sales Restrictions

700

(1)

Territorial Sales Restrictions

700

(1)

Customer Allocation

701

(1)

Field of Use Restrictions

701

(1)

Tying and Bundling

701

(1)

Non-Compete Obligations

702

(1)

No-Challenge Clauses

702

(1)

Improvements

702

(1)

Development of the Application of Article 81(1) to the Licensing of Intellectual Property Rights

703

(9)

General

703

(1)

The Evolution of the Commission's Policy Towards Licensing Agreements

704

(1)

Exclusivity and Territorial Restrictions in the Case Law of the Court

705

(4)

Non-Territorial Restraints

709

(2)

The Block Exemptions on Patent Licensing and Know-How Licensing Prior to 1 May 2004

711

(1)

Intellectual Property Rights and the Block Exemption on Vertical Restraints

712

(1)

Regulation 772/2004 on Technology Transfer Agreements (The TTBER) and the Guidelines on Technology Transfer Agreements

712

(39)

The Commission's Review Process and the Adoption of the New Measures

712

(3)

Mechanics of Assessment under regulation 772/2004 (The TTBER) and the Guidelines

715

(1)

The General Principles by which the Commission Approaches the Application of Article 81 to Intellectual Property Rights

716

(1)

The General Framework for Applying Article 81 to Technology Transfer Agreements

717

(3)

Regulation 772/2004, the Transfer Technology Block Exemption (TTBER)

720

(1)

General

720

(1)

The Scheme of the TTBER

720

(1)

Principal Features of the TTBER

721

(1)

Types of Agreement within the Scope of the TTBER

722

(1)

The Number of Parties

722

(1)

Meaning of Technology Transfer Agreement

723

(1)

The Agreement Must Concern the Production of Contract Products

724

(1)

Market definition

725

(1)

The Technology Market

725

(1)

The Product Market

725

(1)

Market Shares

726

(1)

Means of Calculation

726

(1)

The Technology market

726

(1)

The Product Market

726

(1)

The Distinction Between Competitors and Non-Competitors (Competing and Non-Competing Undertakings)

727

(1)

The Distinction Between Reciprocal and Non-Reciprocal Agreements

728

(1)

The Safe Harbour of the TTBER

728

(1)

Hard-core Restrictions

729

(1)

Agreements Between Competing Undertakings

730

(2)

Agreements Between Non-Competing Undertakings

732

(2)

Excluded Restrictions

734

(1)

Improvements

735

(1)

No Challenge Clauses

735

(1)

Limitations on Technology Exploitation or R&D

736

(1)

The Possibility of Withdrawal

736

(1)

The Possibility of Disapplication

736

(1)

Duration for which the Exemption Applies to an Agreement

737

(1)

The Relationship of the TTBER to other Block Exemptions

737

(1)

The Relevance of the TTBER to Types of Intellectual Property Right Licences Which It Does Not Cover

738

(1)

The Application of Article 81 to Agreements Outside the TTBER

738

(1)

Agreements Outside the TTBER

738

(1)

No Presumption of Illegality

739

(1)

The Second Safe Harbour

739

(1)

The Approach to the Analysis of Individual Agreements

739

(1)

Relevant Factors

740

(1)

The Nature of the Agreement

740

(1)

The Market Position of the Parties

740

(1)

The Market Position of Competitors

740

(1)

The Market Position of the Buyers of the Licenced Product

740

(1)

Entry Barriers

741

(1)

The Maturity of the Market

741

(1)

Other Factors

741

(1)

The Application of the TTBER and the Guidelines to Specific Provisions

741

(1)

Provisions Not Generally Restrictive of Article 81(1)

741

(1)

Royalty Obligations

742

(1)

Exclusive and Sole Licences

742

(1)

Agreements between Competitors

742

(1)

Agreements between Non-Competitors

743

(1)

Cross Licences

743

(1)

Sales Restrictions

743

(1)

Agreements between Competitors

743

(1)

Agreements between Non-Competitors

744

(1)

Output Restrictions

744

(1)

Agreements between Competitors

744

(1)

Agreements between Non-Competitors

745

(1)

Field of Use Restrictions

745

(1)

General

745

(1)

Agreements between Competitors

745

(1)

Agreements between Non-Competitors

746

(1)

Captive Use Agreements

746

(1)

Agreements between Competitors

746

(1)

Agreements between Non-Competitors

746

(1)

Tying and Bundling

747

(1)

Non-Compete Obligations

747

(1)

No-Challenge Clauses

748

(1)

Improvements

749

(1)

Settlement and Non-Assertion Agreements

749

(1)

Technology Pools

750

(1)

Trade Mark Licences

751

(5)

General

751

(1)

The Campari Decision

752

(2)

The Moosehead/Whitbread Decision

754

(2)

Trade Mark Delimitation Agreements

756

(1)

756

(4)

General

756

(1)

Performance Copyright

757

(3)

Software Licences and Interoperability

760

(3)

The Application of Article 82 to Intellectual Property Rights

763

(7)

General

763

(1)

Intellectual Property Rights and Dominance

763

(1)

Intellectual Property Rights and Abuse

764

(1)

The Acquisition of an Exclusive Licence

764

(1)

The Exploitation of Rights Generally

765

(2)

Refusals to Supply Intellectual Property Rights

767

(2)

Compulsory Licensing, Information Technology, and Interoperability

769

(1)

Collecting Societies

770

(1)

Further Reading

770

(1)

Cartels and Oligopoly

771

(76)

Introduction

771

(15)

Cartels and Oligopoly

771

(1)

Explicit and Tacit Collusion

772

(1)

Cartels and Explicit Collusion

772

(1)

Introduction

772

(1)

The Prisoner's Dilemma and Theory of Games

772

(2)

Alignment, Detection, and Punishment of Deviation

774

(1)

Markets Prone to Explicit Collusion

775

(3)

The Desire to Combat and Eliminate Cartels

778

(4)

Tacit Collusion, Coordinated Effects on an Oligopolistic Market

782

(2)

Non-Coordinated Effects

784

(1)

Competition Law and Collusion (Explicit and Tacit)

784

(2)

Cartels

786

(32)

Introduction

786

(1)

Scope of Article 81

786

(1)

Article 81(1)

786

(1)

Establishing a Breach of Article 81(1)

787

(1)

General

787

(1)

Standard of Proof, Powers, and Leniency

788

(2)

Article 81(3)

790

(1)

Price Fixing, Restrictions on Output, Market Sharing, and Collusive Tendering

790

(1)

General

790

(1)

Article 81(1)

790

(1)

Price-fixing Agreements

790

(7)

Output Restrictions and Restrictions Limiting or Controlling Production

797

(3)

Market or Customer Sharing

800

(2)

Collusive Tendering or Bid Rigging

802

(2)

Bolstering Provisions

804

(1)

Article 81(3)

804

(1)

The Possibility of Meeting the Article 81(3) Criteria

804

(1)

Price-fixing Agreements

804

(3)

Output Restrictions and Restrictions Limiting or Controlling Production

807

(1)

Market-sharing Agreements

808

(1)

Collusive Tendering

808

(1)

Restrictions on Non-Price Trading Conditions, Advertising, and Promotion and Information Sharing Agreements

808

(1)

General

808

(1)

Restrictions on Non-Price Trading Conditions

808

(1)

Introduction

808

(1)

Uniform Terms and Conditions

809

(1)

Customer Services

809

(1)

Product Quality

809

(1)

Technical Development

809

(1)

Restrictions on Advertising and Promotion

810

(1)

Information Sharing Agreements

811

(1)

Exchange of Information between Competitors

811

(1)

The Type of Information Exchanged

812

(1)

The Market Structure

812

(1)

Notice on Cooperation Agreements and Guidelines on Horizontal Cooperation

813

(1)

Agreement or Concerted Practice Essential

813

(1)

Cobelpa/VNP and UK Agricultural Tractor Registration Exchange

814

(3)

B-2-B Exchanges

817

(1)

Oligopoly

818

(26)

Oligopoly and Article 81

818

(1)

The Oligopoly Problem

818

(1)

Tacit Collusion and Concerted Practices

818

(1)

The Problem

818

(1)

The Dyestuffs Case

819

(1)

Suiker Unie and Zuchner

820

(1)

Wood Pulp

821

(2)

Conclusions on Article 81 and Parallel Behaviour

823

(2)

Concerted Practices and Unilateral Price Announcements in Advance

825

(2)

Oligopoly and Article 82

827

(1)

`One or More Undertakings'

827

(1)

The Acceptance of a Concept of Collective or Joint Dominance---The Judgment in Flat Glass

827

(2)

The Development of the Concept of Collective Dominance Under Article 82

829

(2)

Collective Dominance and the Merger Regulation

831

(1)

The Judgments in Irish Sugar, Compagnie Maritime Belge, and TACA

832

(4)

Summary

836

(1)

Abuse of a Collective Dominant Position

836

(1)

Flat Glass

837

(1)

Collective Abuses

837

(2)

Abuse by One of the Collectively Dominant Undertakings

839

(2)

Remedies and Fines

841

(1)

Conclusions

841

(1)

Alternative Methods for Dealing with Oligopolistic Markets Under EC Law

841

(1)

Merger Regulation

841

(1)

Sector Inquiries

842

(2)

Cartels

844

(1)

Information Sharing Agreements

844

(1)

Other Agreements

844

(1)

Conclusions

844

(1)

Further Reading

845

(2)

Mergers

847

(148)

Introduction

847

(7)

What is a Merger?

847

(1)

The Purposes of Merger Control

847

(1)

The Motives for, and Advantages of, a Merger

848

(1)

Efficiency

848

(1)

Barriers to Exit

849

(1)

Failing Undertakings and Unemployment

849

(1)

Single Market Integration

849

(1)

National or European Champions

849

(1)

The Adverse Consequence of Mergers

849

(1)

A Damaging Effect on the Competitive Structure of the Market

850

(3)

A Fear of Big Business

853

(1)

Special Sectors and Fear of Overseas Control

854

(1)

Unemployment

854

(1)

The History of the European Merger Control Regulation

854

(8)

The Initial Lacuna

854

(1)

The Drive for Merger Control at the Community Level

855

(1)

The Catalyst for the ECMR

856

(1)

Articles 81 and 82 of the EC Treaty

856

(1)

Article 82

856

(1)

Article 81

857

(2)

The Residual Application of Articles 81 and 82

859

(1)

The Internal Market

859

(1)

The Original EC Merger Control Regulation---Council Regulation (EEC) 4064/89

859

(1)

The 1996 Green Paper and Council Regulation (EC) 1310/97

860

(1)

The 2001 Green Paper

860

(1)

The Current Merger Control Regulation, Council Regulation (EC) 139/2004

861

(1)

The Future

862

(1)

Scheme of the ECMR

862

(2)

Jurisdiction

864

(34)

Concentrations

864

(1)

Definition

864

(1)

Article 3(1)(a)---Mergers between Previously Independent Undertakings

865

(1)

Article 3(1)(b)---Acquisition of Control

866

(2)

Joint Ventures

868

(1)

Introduction

868

(2)

Joint Ventures prior to 1 March 1998

870

(1)

`Full Function' Joint Ventures

870

(3)

Article 3(5)

873

(1)

Community Dimension

873

(1)

A Bright Line Jurisdictional Test

873

(1)

Article 1(2)

874

(1)

The 1996 Green Paper

875

(1)

Article 1(3) of the ECMR

876

(1)

Review of the Thresholds

877

(1)

Jurisdiction and the Commission's Notice on Case Allocation

878

(2)

Concentrations, Undertakings Concerned, and Calculation of Turnover

880

(1)

Concentration with a Community Dimension: A One-Stop Shop?

881

(1)

Exclusive Competence of the Commission under the ECMR

881

(1)

Article 9---Distinct Markets

882

(1)

Objective of Article 9

882

(1)

The Wording of Article 9

883

(1)

Request

884

(1)

A Reference Back

885

(1)

Distinct Market

885

(1)

Success of Claims

886

(2)

Conclusions

888

(1)

Article 21(4)---Legitimate Interests

889

(2)

Article 296 of the EC Treaty---Essential Interests of Security

891

(1)

Concentrations without a Community Dimension

892

(1)

National Law Applies

892

(1)

Joint Ventures

893

(1)

Article 22, Referrals to the Commission

893

(1)

Background

893

(2)

The Mechanics of Article 22

895

(1)

A Residual Role for Articles 81 and 82 of the Treaty

896

(1)

The Relevance of Articles 81 and 82 of the Treaty

896

(1)

Application in the National Courts

897

(1)

The Commission and National Competition Authorities

897

(1)

Procedure

898

(11)

Notification

898

(2)

Pre-Notification Reasoned Submissions

900

(1)

Background

900

(1)

Article 4(4) request for Referral to a National Competition Authority

901

(1)

Article 4(5), Request for a Referral to the Commission

902

(1)

Notice on Case Allocation

902

(1)

Review

903

(1)

Suspension

903

(1)

Phase I Investigation

904

(1)

Article 6(1)(A)

904

(1)

Article 6(1)(B)

904

(1)

Section 6(1)(C)

905

(1)

Article 10(6)

905

(1)

Phase II

905

(2)

Conduct of Merger Investigations

907

(2)

Substantive Appraisal of Concentrations Under the EC Merger Regulation

909

(78)

Background

909

(7)

A Significant Impediment to Effective Competition, in Particular by the Creation or Strengthening of a Dominant Position

916

(1)

General

916

(1)

Market Definition

917

(1)

The Central Role of Market Definition

917

(1)

The Commission's Notice on Market Definition and Previous Decisional Practice

917

(1)

Relevant Product Market

918

(4)

The Relevant Geographic Market

922

(3)

Competitive Assessment of Horizontal Mergers

925

(1)

Introduction and Overview

925

(1)

Market Shares and Concentration Levels

925

(2)

Possible Non-Coordinated Anti-competitive Effects

927

(5)

Possible Coordinated Anti-Competitive Effects---Collective or Joint Dominance

932

(14)

Countervailing Buyer Power

946

(1)

Entry Analysis and Barriers to Entry

947

(1)

The Importance of Entry Analysis

947

(1)

Likelihood of Entry

947

(2)

Timeliness

949

(1)

Sufficiency

949

(1)

Efficiencies

949

(1)

An Efficiency Defence?

949

(1)

An Increase in Consumer Welfare

950

(2)

The ECMR

952

(2)

The Horizontal Merger Guidelines

954

(1)

The Failing Firm Defence or Rescue Mergers

955

(6)

Assessment of Vertical Mergers

961

(1)

Assessment of Conglomerate Mergers

962

(11)

Industrial, Social, and Other Policy

973

(1)

General

973

(1)

Other Policies as a Countervailing Factor

974

(2)

Other Policy Where the Concentration Does Not Significantly Impede Effective Competition

976

(1)

Article 2(4), (5), Joint Ventures

976

(3)

Restrictions Directly Related and Necessary to the Concentration

979

(2)

Commitments or Remedies

981

(1)

Legal Basis and Time Periods

981

(1)

The Commission's Notice on Remedies Acceptable under the ECMR

982

(1)

Types of Commitments

983

(1)

Structural Remedies

984

(1)

Behavioural Commitments and `Remedy Packages'

984

(2)

Other Cases

986

(1)

Breach of a Condition or Obligations

986

(1)

Some Statistics

987

(2)

Appeals

989

(2)

International Issues

991

(2)

The Long Arm of the ECMR

991

(1)

Reciprocity

992

(1)

Conclusions

993

(1)

Further Reading

993

(2)

Joint Ventures and Other Beneficial Horizontal Arrangements

995

(46)

Introduction

995

(2)

Joint Ventures

997

(10)

What is a Joint Venture?

997

(1)

Competition Concerns in Respect of Joint Ventures

998

(1)

Joint Ventures and the Merger Regulation

998

(1)

The Commission's Approach to the Assessment of Joint Ventures under Article 81 before 2000

999

(1)

General

999

(1)

The Development of the Commission's Policy Towards the Application of Article 81 to Joint Ventures

1000

(3)

The 1993 Notice on the Assessments of Cooperative Joint Ventures

1003

(1)

The Application of Article 81(1) and (3) to Joint Ventures after 1993: Some Examples

1003

(4)

Research and Development Agreements, Specialization Agreements, and the 1985 Block Exemptions

1007

(2)

General

1007

(1)

Specialization Agreements

1007

(1)

Research and Development Agreements

1008

(1)

The Assessment of Horizontal Cooperation Agreements in the Light of the Commission Guidelines and of Block Exemptions 2658/2000 and 2659/2000

1009

(31)

General

1009

(2)

The Policy of the Guidelines

1011

(1)

Research and Development Agreements

1012

(1)

General

1012

(1)

Market Definition and Market Shares

1013

(1)

Subjective Assessment According to the Guidelines

1014

(3)

The Block Exemption Regulation on R&D Agreements, Regulation 2659/2000

1017

(3)

Production Agreements

1020

(1)

The Guidelines

1020

(3)

The Block Exemption Regulation on Specialization Agreements, Regulation 2658/2000

1023

(2)

Purchasing Agreements

1025

(4)

Commercialization Agreements

1029

(1)

General

1029

(3)

The Joint Selling of Football Rights

1032

(4)

Standardization Agreements

1036

(2)

Environmental Agreements

1038

(1)

Agreements in Particular Sectors

1039

(1)

Conclusion

1040

(1)

Further Reading

1040

(1)

Public Enforcement by the Commission and the National Competition Authorities

1041

(148)

Introduction

1041

(1)

The Old Enforcement Regime Set Up by Regulation 17

1042

(3)

Article 81(3) and Exemptions

1042

(1)

Notification

1043

(1)

The Notification and Authorization System

1043

(1)

Exemption Decisions

1043

(1)

Comfort Letters

1044

(1)

Modernization

1045

(10)

The Reasons for Modernization

1045

(1)

The Proposals in the White Paper

1046

(1)

The Lawfulness of Making Article 81(3) Directly Applicable

1046

(1)

The Suitability of Article 81(3) for Direct Application?

1047

(1)

Maintaining the Consistency and Coherence of EC Competition Law

1048

(1)

Less Certainty for Undertakings

1049

(1)

The Modernization `Package'

1050

(1)

Regulation 1/2003, the New Implementing Regulation and the Modernization Notices

1050

(1)

Regulation 1/2003

1050

(4)

Regulation 773/2004

1054

(1)

The Modernization Notices

1054

(1)

Enforcement By the Commission

1055

(89)

General

1055

(1)

The Broad Powers of the Commission

1055

(1)

Findings of Inapplicability and Guidance Letters

1056

(1)

Findings of Inapplicability

1056

(1)

Informal Guidance

1056

(2)

The Initiation of Proceedings

1058

(1)

Fact-Finding by the Commission

1059

(1)

General

1059

(1)

Article 18 Requests for Information

1060

(2)

Article 20 Inspections

1062

(1)

General

1062

(8)

The Powers of the Inspectors

1070

(2)

The Role of the NCAs, the Member States, and the National Courts in Article 20 Inspections

1072

(5)

The Application of Article 8 of the ECHR

1077

(3)

Legal Advice

1080

(1)

Legal Privilege

1081

(1)

Self-Incrimination

1081

(1)

Inspections on Private Premises Under Article 21

1081

(1)

The Power to Take Statements

1082

(1)

The Right Not to Incriminate Oneself

1083

(6)

Legal Privilege

1089

(7)

The Second Stage of the Procedure

1096

(1)

General: the Right to be Heard

1096

(1)

The Statement of Objections

1097

(1)

The Hearing Officer

1098

(1)

Access to the File

1098

(1)

General

1098

(1)

The Right of Parties to Know the Case Against Them

1099

(4)

Confidentiality

1103

(3)

Article 82 Cases

1106

(1)

Confidentiality and Complainants

1107

(2)

Confidentiality, NCAs, and National Proceedings

1109

(1)

The Oral Hearing

1109

(1)

Commission Decisions

1109

(1)

General

1109

(1)

Final Decisions

1110

(1)

Termination of Infringements

1110

(4)

Commitments Decisions

1114

(1)

Findings of Inapplicability

1115

(1)

Procedural Decisions

1115

(1)

Interim Measures

1116

(2)

Fines and Periodic Penalty Payments

1118

(1)

General

1118

(1)

Fines for Procedural Infringements

1119

(1)

Periodic Penalty Payments

1120

(1)

Fines for Substantive Infringements

1120

(1)

Broad Discretion Conferred on the Commission by Regulation 1/2003, Article 23(2)

1120

(1)

The Position of Trade Associations

1121

(1)

Intentional or Negligent Infringement

1122

(2)

Development of the Commission's Fining Policy

1124

(3)

The Commission's 1998 Guidelines on the Method of Setting Fines

1127

(7)

Effect and Application of the Guidelines

1134

(2)

Liability for Fines

1136

(1)

The Payment and Collection of Fines

1137

(1)

Notice on the Non-Imposition or Reduction of Fines in Cartel Cases (The Leniency Notice)

1137

(6)

Informal Settlements

1143

(1)

General

1143

(1)

Sector Inquiries

1144

(1)

Proceedings Before the Court of Justice

1144

(16)

Judicial Review

1144

(1)

General

1144

(2)

Article 230 EC

1146

(1)

Locus Standi---Who Can Bring an Action?

1146

(2)

Which Acts Can be Challenged?

1148

(1)

The Grounds of Review

1148

(1)

General

1148

(1)

Lack of Competence

1149

(1)

Infringement of an Essential Procedural Requirement

1150

(2)

Infringement of the Treaty or any Rule of Law Relating to its Application

1152

(2)

The Effects of Annulment

1154

(1)

Appeals Against Penalties: Article 229 EC

1155

(1)

Appeals From the Court of First Instance to the Court of Justice

1155

(3)

Interim Measures by the Court Under Article 242 EC

1158

(1)

Actions for Damages Under Article 288 EC

1159

(1)

Enforcement by the National Competition Authorities

1160

(10)

General

1160

(1)

The Competent Authority in the UK

1161

(1)

Division of Work

1162

(1)

Case Allocation---Which Authority is Well Placed to Deal with a Case?

1162

(3)

Transfer of Information

1165

(2)

Leniency Applications

1167

(1)

Consistent Application of Articles 81 and 82

1168

(1)

General

1168

(1)

Mechanism of Cooperation

1169

(1)

The Relationship between EC and National Competition Law

1170

(1)

The Relationship between EC and National Competition Law

1170

(4)

Complaints

1174

(13)

General

1174

(2)

Where to Complain

1176

(1)

Standing

1176

(2)

The Procedure

1178

(1)

The Obligations on the Commission

1178

(2)

Rejection of the Complaint

1180

(1)

Introduction

1180

(1)

The Community Interest

1180

(4)

Allegations Not Substantiated

1184

(1)

Investigation by Another Competition Authority

1184

(1)

The Commission is Obliged to Make a Formal Rejection of the Complaint

1184

(1)

Acting On a Complaint

1184

(1)

Fact Finding and Opening a Formal Procedure

1184

(1)

Judicial Review Proceedings

1185

(1)

An Omission to Act

1185

(1)

Review of Acts

1186

(1)

Standing

1186

(1)

A Reviewable Act

1186

(1)

Grounds for Annulment

1186

(1)

Complaints and the Merger Regulation

1187

(1)

Conclusions

1187

(1)

Further Reading

1187

(2)

Proceedings in the National Courts

1189

(45)

Introduction

1189

(9)

General

1189

(1)

A Paucity of Antitrust Litigation in Europe

1189

(3)

Regulation 1/2003 and Encouragement of Private Actions

1192

(3)

Uniform and Concurrent Application of Articles 81 and 82

1195

(1)

Cooperation between the Commission and National Courts

1195

(1)

Judgments Contrary to Decisions of the Commission

1196

(1)

Article 16 Regulation 1/2003

1196

(1)

Parallel Proceedings

1197

(1)

Consecutive Proceedings

1197

(1)

Conclusion

1197

(1)

The Enforceability of Agreements Infringing Articles 81 or 82

1198

(6)

Article 81

1198

(1)

The Sanction of Nullity

1198

(1)

Severance

1199

(1)

Nullity and Illegality

1200

(1)

Transient Nullity

1201

(1)

Article 82

1202

(1)

Void and Unenforceable?

1202

(1)

Illegality

1203

(1)

Conclusions

1203

(1)

Remedies: Damages Actions and Injunctions

1204

(28)

The Principles of National Procedural Autonomy, Equivalence, and Effectiveness

1204

(2)

Damages

1206

(1)

A Community Right to Damages

1206

(1)

Introduction

1206

(1)

Background to the Claim

1206

(3)

The Case for a Community Right to Damages

1209

(2)

The ECJ's Judgment in Courage Ltd v. Crehan

1211

(3)

A Community Right to Damages

1214

(1)

Claims Between Co-Contractors

1215

(3)

Damages Claims in the English Courts

1218

(1)

A Tortious Claim

1218

(2)

Claims Between Co-Contractors and the Illegality Defence

1220

(1)

Proving a Breach

1221

(2)

Causation

1223

(1)

Limitation Rules and Other Bars to a Claim

1224

(1)

Quantification of Loss and Other Issues

1224

(3)

Jurisdiction

1227

(1)

Damages Claims in Other Member States

1228

(1)

Damages Claims in the US

1229

(1)

Conclusions

1229

(1)

Interim Injunctions

1230

(1)

General

1230

(1)

A Community Right to an Injunction

1230

(1)

The Position in English Law

1230

(2)

Conclusions

1232

(1)

Further Reading

1233

(1)

Extraterritoriality, International Aspects, and Globalization

1234

(41)

Introduction

1234

(1)

The Position in US Law

1235

(11)

General

1235

(1)

The Effects Doctrine

1236

(4)

Enforcement and the Reactions of Other States

1240

(2)

Foreign Plaintiffs in US Courts

1242

(4)

The Effects Doctrine and Foreign Conduct Affecting Exports

1246

(1)

International Law

1246

(2)

The Position in EC Law

1248

(18)

General

1248

(1)

The Dyestuffs Case

1249

(3)

The Woodpulp Case

1252

(3)

The Merger Regulation

1255

(1)

The Terms of the Merger Regulation

1255

(2)

The Gencor Case

1257

(6)

The Boeing/McDonnell Douglas Case

1263

(2)

The GE/Honeywell Case

1265

(1)

International Cooperation

1266

(7)

General

1266

(1)

Bilateral Agreements

1266

(1)

The EC-US Cooperation Agreement

1266

(1)

The Content of the 1991 and 1998 Agreements

1266

(3)

The Application of the Agreements

1269

(1)

Other Cooperation Agreements

1270

(1)

Multilateral Cooperation

1270

(1)

General

1270

(1)

UNCTAD and the OECD

1270

(1)

The WTO

1270

(2)

The International Competition Network

1272

(1)

A Global Competition Law Regime?

1272

(1)

Further Reading

1273

(2)

Glossary of Economic Terms

1275

(6)

Index

1281

EC Competition Law Text, Cases, and Materials

Rent Textbook

New Textbook

Used Textbook

eTextbook

Summary

Author Biography

Table of Contents

Digital License