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Lisbon Treaty

Lisbon Treaty Following its ratification by the Czech Republic, the last Member State to do so, the Treaty of Lisbon entered into force on 1 December 2009. One of the main objectives of the Treaty of Lisbon is to modernise the institutional and decisional framework of the European Union, with streamlined and modern institutions, simplified working methods and voting rules, and a more effective and efficient decision-making process for a European Union of 27 members. Lisbon Treaty and Competition Law The following text is from Van Bael & Bellis: Overall, the Treaty of Lisbon’s impact on competition law will probably remain limited. However, a number of key changes merit attention. 1. Institutional and Formal Changes a. Structure of the Treaties and of the European Union o EC becomes EU – The Treaty of Lisbon grants the European Union a single legal personality; it replaces and succeeds the European Community. Consequently, all references to “European Community” and “Community” in the European terminology are replaced by the word “European Union” and “Union” (except when referring to the European Atomic Energy Community, which continues to exist). b. Changes in wording and numbers related to the chapter on competition o Provisions on competition are […]

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Private Enforcement

Private Enforcement in Competition Law NATIONAL COURTS §11.1. Introduction §11.2. Decentralization process §11.3. Advantages and disadvantages of procedures before national courts §11.4. Application of EC competition law by national courts (1) Powers of national courts (2) Parallel or consecutive application of the EC competition rules by the Commission and by national courts (3) Right to damages before national courts (4) Procedural aspects of enforcement of EC competition law before national courts §11.5. Cooperation between national courts and the Commission (1) Assistance of national courts by the Commission (2) Assistance of the Commission by national courts §11.6. Conclusion ARBITRATION §11.7. Introduction §11.8. EC competition law and arbitration: general principles §11.9. Impact of the Regulation on Procedure on arbitration

Competition Procedure

TFEU arts 101 and 102 set out the rules applicable to undertakings. These rules prohibit: Agreements, decisions and concerted practices which: (1) affect trade between member states; or (2) prevent, restrict or distort competition within the internal market. Abuse of a dominant position within the EU. TFEU arts 103 – 106 make supplementary provisions relating to: (1) the making of regulations or directives; (2) infringements; and (3) amendment to the laws of the member states. TFEU art 107 prohibits any state aid which distorts competition affecting trade between member states. TFEU arts 108 and 109 make supplementary provisions relating to surveillance by the Commission and the making of regulations. INTRODUCTION §10.1. Rules of procedure generally §10.2. Rules of procedure under Regulation 17 (1) The notification process (2) Outcome of the notification process §10.3. Drastic reform of the procedural rules: the Regulation on Procedure (1) Abolition of the notification and exemption system (2) Decentralized application of Articles 81 and 82 (3) Concurrent application of Articles 81 and 82 and national competition law (4) Challenges ahead §10.4. Impact of fundamental rights on competition enforcement procedure (1) Fundamental rights and the law of the European Union (2) Fundamental rights and competition law proceedings […]

Antitrust and the State

Antitrust and the State STATE MEASURES THAT MAY JEOPARDIZE THE ATTAINMENT OF THE COMPETITION LAW OBJECTIVES OF THE TREATY §9.3. Relevant Treaty provisions: Articles 10, 3(1)(g), 81 and 82 §9.4. The INNO/Van Eycke line of case law (1) INNO (2) Van Eycke (3) “Complicity” cases: State measures that require, favour or reinforce restrictive agreements (4) Delegation cases (5) Sovereign immunity (6) The duty of national competition authorities to disapply anti-competitive State measures in breach of Article 10 read in the light of Article 81 (7) Direct effect of Article 10 read in the light of Article 81 STATE MEASURES RELATED TO PUBLIC OR ‘PRIVILEGED’ UNDERTAKINGS §9.5. Introduction §9.6. Scope, application and enforcement of Article 86(1) (1) The concept of an undertaking (2) Undertakings with special or exclusive rights (‘privileged’ undertakings) (3) Public undertakings (4) State measures §9.7. State measures contrary to the Treaty: background and three strands of case law (1) Grant of special or exclusive rights acceptable in principle (2) Grant of special or exclusive rights impermissible in some circumstances (3) Exemptions from the application of Article 86(1) §9.8. Article 86(3): the enforcement and legislative powers of the Commission (1) Broad discretion for the Commission under Article 86(3) (2) […]

Abuse of a Dominant Position

Abuse of a Dominant Position Contents THE CONCEPT OF ‘ABUSE’ §8.1. Exploitative abuses and exclusionary abuses §8.2. The object or effect of the behaviour at issue §8.3. The ‘special responsibility’ of dominant firms §8.4. The required degree of linkage between the dominated market and the market on which the abuse occurs §8.5. The required degree of linkage between the dominant undertaking and the undertaking which commits the abuse §8.6. Objective justification §8.7. Commission’s Guidance on Abusive Exclusionary Conduct ABUSIVE PRACTICES §8.8. Pricing practices (1) Charging excessive prices (2) Extracting excessively low purchase prices (3) Price discrimination (4) Rebate schemes (5) Predatory pricing (6) Margin squeezing §8.9. Refusals to deal (1) Introduction (2) Refusal to supply (3) Refusal to license (4) Essential facilities (5) Justifications for refusals to deal (6) Refusal to purchase §8.10. Discrimination (1) Discriminating between nationals or residents of different Member States (2) Other forms of discrimination §8.11. Tying (1) The tying and tied goods are two separate products (2) The undertaking concerned is dominant in the tying product market (3) The undertaking does not give customers a choice to obtain the tying product without the tied product (4) The tie forecloses competition (5) There is no objective […]


JURISDICTION OF THE COMMISSION TO REVIEW MERGERS §7.2. Overview: concentrations with Community dimension (1) The concept of a concentration (2) Community dimension §7.3. Concentrations falling outside the thresholds §7.4. Exceptions to the one-stop shop principle (1) Member State protection of legitimate interests (2) Referrals from the Commission to one or more Member States (3) Referrals from three or more Member States to the Commission (4) Referrals by a Member State to the Commission §7.5. Identifying the entities whose turnover must be considered in assessing ‘Community dimension’ (1) Identifying the ‘undertakings concerned’ – overview (2) Undertakings concerned in the case of mergers (3) Undertakings concerned in the case of acquisitions of sole control (4) Undertakings concerned in the case of acquisitions of joint control (5) Undertakings concerned in the case of acquisitions of control by a joint venture (6) Undertakings concerned in the case of changes from joint to sole control (7) Undertakings concerned in the case of de-mergers (break up of companies) (8) Undertakings concerned in the case of exchange of assets (‘asset swaps’) and in the context of outsourcing agreements (9) Undertakings concerned in the case of acquisitions of control by investment funds §7.6. The definition of ‘turnover’ (1) […]

Intellectual Property Rights in Competition Law

RESTRICTIONS ON ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS §6.1. Introduction §6.2. Articles 81 and 82 as a defence against the enforcement of intellectual property rights §6.3. The exhaustion principle §6.4. Trade within the European Economic Area (1) General principles (2) Copyright: mechanical rights (3) Copyright: performing rights (4) Copyright: rental rights (5) Copyright: supplementary royalties (6) Copyright: computer programmes (7) Trade marks: exhaustion and the Trade Mark Directive (8) Trade marks: repackaging and parallel trade of trade marked goods (9) Trade marks: removing labels from trade marked goods (10) Trade marks: the ‘common ownership’ doctrine and assignment of rights (11) Patents: exhaustion by licence (12) Patents: exhaustion despite lack of protection in Member State of export (13) Patents: compulsory licence in Member State of export (14) Geographic scope of the exhaustion principle (15) National legislation contrary to Article 30 §6.5. Imports of pharmaceutical products from the new EU Member States (1) Exception to the exhaustion rule for certain pharmaceutical products imported from acceding countries: the ‘Specific Mechanism’ (2) One-month notice requirement for parallel importers §6.6. Imports from non-EEA countries (1) Trade marked goods: no international exhaustion of rights (2) The meaning of ‘consent’ under the exhaustion principle: unequivocal consent required (3) […]

Joint Ventures

Cartels Joint Ventures are a kind of Horizontal Agreements, like Cartels and other Cooperation Agreements. DEFINITION OF HORIZONTAL COOPERATION AGREEMENTS AND THE SCOPE OF THIS CHAPTER §5.2. Scope of the Horizontal Guidelines §5.3. Definition of ‘horizontal’ cooperation agreements §5.4. The standard of legality: Article 81 or the Merger Regulation GENERAL OVERVIEW OF THE APPLICATION OF ARTICLE 81 AND THE HORIZONTAL GUIDELINES TO JOINT VENTURES AND OTHER HORIZONTAL COOPERATION AGREEMENTS §5.5. Overview §5.6. Application of Article 81(1) to joint ventures and other horizontal cooperation agreements (1) Appreciable restriction of competition (2) Likely to affect trade between the Member States §5.7. Exemption: application of Article 81(3) to horizontal cooperation agreements (1) Economic benefits (2) Fair share for consumers (3) Indispensability (4) No elimination of competition INTRODUCTION TO THE REMAINDER OF THIS CHAPTER §5.8. Scope §5.9. Locating the applicable section of this chapter §5.10. Centre of gravity test §5.11. Rules applicable to strategic alliances RESEARCH AND DEVELOPMENT AGREEMENTS §5.12. Introduction §5.13. Article 81(1) (1) Agreements that generally do not constitute a restriction or distortion of competition under Article 81(1) (2) Agreements that almost always constitute a restriction or distortion of competition under Article 81(1) (3) Factors used to determine whether R&D agreements constitute […]


Cartels Cartels are a kind of Horizontal Agreements, like Joint Ventures and other Cooperation Agreements. APPLICATION OF ARTICLE 81(1) TO CARTELS RESTRICTION OF COMPETITION THROUGH CARTELS §4.1. Pricing practices (1) Price-fixing agreements (2) Price discrimination (3) Ancillary agreements (4) Parallel pricing behaviour (5) Cartels and Article 82 §4.2. Market-sharing agreements (1) Geographical market-sharing (2) Limitation of production or sources of supply (3) Limitation or control of investment (4) Allocation of customers and/or products (5) Product and geographic market sharing combined (6) Bid rigging §4.3. Collective Boycotts §4.4. Exchange of Information (1) Application of Article 81(1) (2) Market structure (3) Nature of the information exchanged (4) Exchange of price information (5) Exchange of information on production and sales (6) Exchange of information on costs, investments and capacities (7) Exchange of information on or between distributors (8) Information exchange between financial institutions concerning the identity and solvency of their customers (9) Business-to-business electronic marketplaces (10) UK Agricultural Tractor Registration Exchange §4.5. Trade associations, trade fairs and exhibitions, exchanges and auctions (1) Trade associations (2) Trade fairs and exhibitions (3) Exchanges (4) Auctions STATE COMPULSION AS A DEFENCE FOR CARTEL ACTIVITY EXEMPTION OF CARTELS IN CRISIS SITUATIONS §4.6. Introduction §4.7. Assessment of crisis […]

Vertical Agreements

Vertical Agreements Contents AGENCY AGREEMENTS §3.1. Introduction §3.2. The importance of risk (1) Risks related to contracts concluded by the agent (2) Risks related to market-specific investments §3.3. Level of risk §3.4. Where the agent has activities outside the agency relationship §3.5. Restrictions imposed on genuine agents §3.6. Collusion through agency SUBCONTRACTING AGREEMENTS §3.7. Introduction §3.8. Application of Article 81(1) to exclusivity provisions in subcontracting agreements §3.9. The Subcontracting Notice §3.10. Application of Article 81 outside the Subcontracting Notice DE MINIMIS NOTICE THE VERTICAL AGREEMENTS BLOCK EXEMPTION §3.11. Overview §3.12. The scope of application of the Vertical Agreements Block Exemption (1) Definition of vertical agreements (2) Partial exclusion: agreements between competing undertakings (3) Provisions related to intellectual property (4) Associations of retailers (5) Relationship with other block exemption regulations §3.13. Market share test §3.14. Hardcore restrictions (1) Resale prices (Article 4(a)) (2) Resale restrictions on the buyer (Article 4(b)) (3) Restrictions on the supplier (Article 4(e)) §3.15. Non-compete obligations (1) Maximum duration (2) Post-term restrictions (3) Selective distribution §3.16. Withdrawal of the Vertical Agreements Block Exemption (1) Individual agreements (2) Entire market PARALLEL TRADE AND TERRITORIAL RESTRICTIONS §3.17. Introduction (1) Intra-brand competition (2) Market integration (3) Protection of the parallel […]