COMPETITION LAW
Week 1
Introduction of EU Competition law
Does EU Competition Law apply?
For EU Competition law to apply there must be looked at if there is:
1) An undertaking (case Höfner)
o Entity
Single unit doctrine? Art. 101(1) TFEU is not applicable if the parties are
considered a single economic entity. If subsidiary has no real autonomy
to determine its course of action on the market, full ownership presumes
full control (case Akzo Nobel)
o Economic activity: the activity of offering goods and services on the market.
Case MOTOE: assessment on a case-by-case, fact-by-fact basis!!!
2) Is there an effect on trade between Member States (cross-border economic activity)?
Guidelines on the effect on trade concept contained in art. 81 and 82 TFEU:
o There must eb an impact on cross-border economic activity
o Involving at least two member states
If it is the case that there is a single unit, art. 101(1) does not apply, because of the single unit
doctrine. Then you can see if art. 102 TFEU applies: dominance interfering with parallel trade?
Application by the ACM of EU or National law possible?
Art. 3 regulation 1/2003: effect of trade determines chose EU/national competition.
Art. 3(1) – national competition authorities must apply EU competition law when it is
applicable.
Art. 3(2) – application of national competition law in parallel should not lead to conflicting
outcomes.
Who is liable for fines?
1) Who implemented the prohibited practices?
o Most likely liable
2) What is the relation of the corporations?
3) Leniency notice – fines
4) DMA
Immunity from fines?
Application of the Leniency Notice, requirements to be met (para. 8-13):
Any fine which would otherwise have been imposed to an undertaking disclosing its
participation in an alleged cartel affecting the Community.
Information and evidence:
o A corporate statement
o Other evidence relating to the alleged cartel in possession of the applicant.
There is not yet sufficient evidence to adopt a decision to carry out an inspection or that
there is an infringement on art. 101 TFEU. To qualify:
o The first to provide evidence of the alleged cartel.
,COMPETITION LAW
o Corporate statement
The undertaking cooperates genuinely.
The undertaking ended its involvement in the alleged cartel immediately following its
application.
The undertaking must not have destroyed, false or concealed evidence of the alleged cartel.
Leniency is not possible for non-cartel cases!!
Art. 11(6) of Regulation 2003/1: Once the Commission started an investigation, the NCA is no longer
competent, but must be the same case and facts.
Once a decision has already been taken, national courts cannot take a contradictory decision
on the same issue.
Liability for damages?
Infringements of art. 101/102 trigger liability for private damages claims.
The scope of liability can extend to entire cartel.
In the case immunity recipients: may be limited to individual liability unless damages cannot
be retrieved from other cartel parties.
To whom will the fine be addressed and whose turnover will be considered?
Art. 23 Regulation 2003/1: the fine is given to the concerned undertaking.
Public v private enforcement
It is often said that there is a conflict between private and public competition law enforcement in the
EU. Arguably, that conflict can be solved by a legal regime in which eliminated) and in which victims
of breaches of EU competition law are granted full access to all files of the competition authority,
including leniency statements. Such a legal regime maximises both the effectiveness of public
competition law enforcement and the ability of victims to obtain compensation for damages.
, COMPETITION LAW
Week 2
Collusive behaviour
Assessment of Collusion: art. 101(1) TFEU
1) Undertakings / Association of Undertakings (AoU)
definition of ‘undertaking’ according to the Hofner case - any entity engaged in economic
activity.
economic activity – any activity that consists of offering goods/services on the market
(Pavlov)
exceptions: solidarity-based activities (FENIN, AOK), regulatory matters (MOTOE),
collective bargaining (labour) (Albany)
single economic entity – parent/subsidiary (Akzo)
2) Agreement / Decisions by AoU / Concerted Practices
definition of ‘agreement’- concurrence of wills / meeting of the minds, cf. Bayer AG v
Commission
could be an oral agreement, informal gentlemen’s agreement; concurrence of wills,
regardless of form – cf. ACF, Hercules
definition of ‘concerted practices’ (T-Mobile = contact + parallel behaviour + causal link);
cf. Dyestuffs and Woodpulp II
3) Effect on Trade between the MS
refer to Guidelines on Effect on Trade Concept
sufficiently likely (direct/indirect and actual/potential) effect on pattern of cross-border
economic activities (STM)
quantitative threshold = aggregate market share of at least 5% + 40 million turnover
4) Restriction of Competition
exception – ancillary or regulatory restraints?
by object – inherently harmful to competition, by its very nature harmful (Expedia and T-
Mobile).
restrictions of ‘object’ - a presumption of effects? (Beef Industry Development)
by effect – full-fledged effects analysis required (cf. Delimitis) – resource-intensive, time-
consuming, costly, and complex.
Agreement and concerted practice
(1) definition
coordinated conduct on the market, without a proper agreement having been reached, that indicates
that the involved undertakings have substituted collusion for the risks inherent to market
competition; undertakings no longer act independently on the market and eliminate the
uncertainties inherent to competition (Dyestuffs)
(2) act of reciprocal communication
Receipt of unilaterally disclosed commercially sensitive information sufficient; passive attendance at
meeting at which prices are discussed, even just the passive receipt of a document containing a
competitor’s commercially sensitive information (requirement to ‘publicly distance’ oneself from the
Week 1
Introduction of EU Competition law
Does EU Competition Law apply?
For EU Competition law to apply there must be looked at if there is:
1) An undertaking (case Höfner)
o Entity
Single unit doctrine? Art. 101(1) TFEU is not applicable if the parties are
considered a single economic entity. If subsidiary has no real autonomy
to determine its course of action on the market, full ownership presumes
full control (case Akzo Nobel)
o Economic activity: the activity of offering goods and services on the market.
Case MOTOE: assessment on a case-by-case, fact-by-fact basis!!!
2) Is there an effect on trade between Member States (cross-border economic activity)?
Guidelines on the effect on trade concept contained in art. 81 and 82 TFEU:
o There must eb an impact on cross-border economic activity
o Involving at least two member states
If it is the case that there is a single unit, art. 101(1) does not apply, because of the single unit
doctrine. Then you can see if art. 102 TFEU applies: dominance interfering with parallel trade?
Application by the ACM of EU or National law possible?
Art. 3 regulation 1/2003: effect of trade determines chose EU/national competition.
Art. 3(1) – national competition authorities must apply EU competition law when it is
applicable.
Art. 3(2) – application of national competition law in parallel should not lead to conflicting
outcomes.
Who is liable for fines?
1) Who implemented the prohibited practices?
o Most likely liable
2) What is the relation of the corporations?
3) Leniency notice – fines
4) DMA
Immunity from fines?
Application of the Leniency Notice, requirements to be met (para. 8-13):
Any fine which would otherwise have been imposed to an undertaking disclosing its
participation in an alleged cartel affecting the Community.
Information and evidence:
o A corporate statement
o Other evidence relating to the alleged cartel in possession of the applicant.
There is not yet sufficient evidence to adopt a decision to carry out an inspection or that
there is an infringement on art. 101 TFEU. To qualify:
o The first to provide evidence of the alleged cartel.
,COMPETITION LAW
o Corporate statement
The undertaking cooperates genuinely.
The undertaking ended its involvement in the alleged cartel immediately following its
application.
The undertaking must not have destroyed, false or concealed evidence of the alleged cartel.
Leniency is not possible for non-cartel cases!!
Art. 11(6) of Regulation 2003/1: Once the Commission started an investigation, the NCA is no longer
competent, but must be the same case and facts.
Once a decision has already been taken, national courts cannot take a contradictory decision
on the same issue.
Liability for damages?
Infringements of art. 101/102 trigger liability for private damages claims.
The scope of liability can extend to entire cartel.
In the case immunity recipients: may be limited to individual liability unless damages cannot
be retrieved from other cartel parties.
To whom will the fine be addressed and whose turnover will be considered?
Art. 23 Regulation 2003/1: the fine is given to the concerned undertaking.
Public v private enforcement
It is often said that there is a conflict between private and public competition law enforcement in the
EU. Arguably, that conflict can be solved by a legal regime in which eliminated) and in which victims
of breaches of EU competition law are granted full access to all files of the competition authority,
including leniency statements. Such a legal regime maximises both the effectiveness of public
competition law enforcement and the ability of victims to obtain compensation for damages.
, COMPETITION LAW
Week 2
Collusive behaviour
Assessment of Collusion: art. 101(1) TFEU
1) Undertakings / Association of Undertakings (AoU)
definition of ‘undertaking’ according to the Hofner case - any entity engaged in economic
activity.
economic activity – any activity that consists of offering goods/services on the market
(Pavlov)
exceptions: solidarity-based activities (FENIN, AOK), regulatory matters (MOTOE),
collective bargaining (labour) (Albany)
single economic entity – parent/subsidiary (Akzo)
2) Agreement / Decisions by AoU / Concerted Practices
definition of ‘agreement’- concurrence of wills / meeting of the minds, cf. Bayer AG v
Commission
could be an oral agreement, informal gentlemen’s agreement; concurrence of wills,
regardless of form – cf. ACF, Hercules
definition of ‘concerted practices’ (T-Mobile = contact + parallel behaviour + causal link);
cf. Dyestuffs and Woodpulp II
3) Effect on Trade between the MS
refer to Guidelines on Effect on Trade Concept
sufficiently likely (direct/indirect and actual/potential) effect on pattern of cross-border
economic activities (STM)
quantitative threshold = aggregate market share of at least 5% + 40 million turnover
4) Restriction of Competition
exception – ancillary or regulatory restraints?
by object – inherently harmful to competition, by its very nature harmful (Expedia and T-
Mobile).
restrictions of ‘object’ - a presumption of effects? (Beef Industry Development)
by effect – full-fledged effects analysis required (cf. Delimitis) – resource-intensive, time-
consuming, costly, and complex.
Agreement and concerted practice
(1) definition
coordinated conduct on the market, without a proper agreement having been reached, that indicates
that the involved undertakings have substituted collusion for the risks inherent to market
competition; undertakings no longer act independently on the market and eliminate the
uncertainties inherent to competition (Dyestuffs)
(2) act of reciprocal communication
Receipt of unilaterally disclosed commercially sensitive information sufficient; passive attendance at
meeting at which prices are discussed, even just the passive receipt of a document containing a
competitor’s commercially sensitive information (requirement to ‘publicly distance’ oneself from the
