EU Competition Law and Policy - compal

©Ariel Ezrachi, December 2012 

EU Competition Law and Policy 

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Source: A. Ezrachi, EU Competition Law – An Analytical Guide to the Leading Cases (Hart 3 rd , 2012) 

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Market Definition 

The definition of the market is an important step in the identification of boundaries of 

competition between firms. The main purpose of market definition as laid down in the 

Commission Notice on the Definition of the Relevant Market for the Purposes of Community 

Competition Law (1997 OJ C 372) ‘is to identify in a systematic way the competitive constraints 

that the undertakings involved face. The objective of defining a market in both its product and 

geographic dimension is to identify the actual competitors of the undertakings involved that are 

capable of constraining their behaviour and preventing them from behaving independently of an 

effective competitive pressure. It is from this perspective, that the market definition makes it 

possible, inter alia, to calculate market shares that would convey meaningful information 

regarding market power for the purpose of assessing dominance or for the purpose of applying 

[Article 101 TFEU]’ (para 2) 

The Commission Notice on the Definition of the Relevant Market provides valuable insight into 

the methodology applied by the Commission when defining the product and geographic 

markets. The product market is generally defined in the Notice as one which ‘comprises all those 

products and/or services which are regarded as interchangeable or substitutable by the 

consumer, by reason of the products' characteristics, their prices and their intended use.’ (para 7) 

The geographic market is defined in the Notice as one which ‘comprises the area in which the 

undertakings concerned are involved in the supply and demand of products or services, in which 

the conditions of competition are sufficiently homogeneous and which can be distinguished 

from neighbouring areas because the conditions of competition are appreciably different in those 

areas.’ (para 8) 

Although the process of market definition is primarily an economic exercise, European case law 

provides a useful reflection of the methodology used in the analysis. The following cases 

highlight various aspects of market definition. 

Product and Geographic Markets 

27/76 United Brands v Commission 

85/76 Hoffmann-La Roche & Co. v Commission 

6/72 Europemballage Corp & Continental Can v Commission 

322/81 Nederlandsche Banden Industrie Michelin v Commission 

T-219/99 British Airways v Commission 

T-340/03 France Télécom SA v Commission 

1005/1/1/01 Aberdeen Journals v Director General of Fair Trading 

1016/1/1/03 Genzyme Limited v Office of Fair Trading 

Markets for Spare Parts/Aftermarkets 

22/78 Hugin v Commission 

T-30/89 Hilti AG v Commission

T-427/08 CEAHR v Commission 

Narrow Markets 


T-30/89 Hilti AG v Commission 

Switching Costs/Technology Markets 

COMP/35.587 etc PO Video Games (Nintendo) 

Markets for Raw Materials 

6/73 Commercial Solvents v Commission 

Market Definition and Market Power 


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The SSNIP test which is used to define the market is based on the assumption that prevailing 

prices on the market are competitive. However, in the context of Article 102 cases, it is often the 

case that the price on the market is likely to be above competitive levels. Failure to take this into 

account may give rise to the ‘cellophane fallacy’ and lead to the market being defined too widely. 

Consequently, in cases of dominance it is appropriate to rely on a wider range of methods to 

assess the market and eliminate false substitutes. See the Commission Notice on the Definition 

of the Relevant Market (para 25) and the Commission’s Discussion Paper on the Application of 

[Article 102 TFEU] to Exclusionary Abuses (December 2005) (paras 11-19). 

The ‘cellophane fallacy’ highlights a significant shortcoming in the process of market definition. 

The risk of distortion in the analysis may arise even below the levels of dominance, when more 

limited levels of market power are present. Subsequently, conclusions as to the elasticity of 

demand should be treated with caution when used to delineate the market. It is prudent to treat 

the defined market as a valuable analytical framework but refrain from attributing rigid 

boundaries to it. 

Barriers to Expansion or Entry, and Potential Competition 

The methodology used to define the market primarily focuses on demand and supply 

substitutability. As such, it does not provide the complete picture of the competitive pressures 

faced by the undertakings. An analysis of the wider picture, including potential competition is 

called for where the position of the undertakings involved in the relevant market raises concerns 

from a competition point of view. 

Judicial review 

In so far as the definition of the product market involves complex economic assessments on the 

part of the Commission, it is subject to limited review by the Court. The Court will assess 

whether the Commission based its assessment on accurate, reliable and coherent evidence which 

contains all relevant data and is capable of substantiating the conclusions drawn from it. See: 

T-301/04 Clearstream v Commission 49

Article 101 TFEU 


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1. The following shall be prohibited as incompatible with the internal market: all agreements 

between undertakings, decisions by associations of undertakings and concerted practices 

which may affect trade between Member States and which have as their object or effect the 

prevention, restriction or distortion of competition within the internal market, and in 

particular those which: 

(a) directly or indirectly fix purchase or selling prices or any other trading conditions; 

(b) limit or control production, markets, technical development, or investment; 

(c) share markets or sources of supply; 

(d) apply dissimilar conditions to equivalent transactions with other trading parties, thereby 

placing them at a competitive disadvantage; 

(e) make the conclusion of contracts subject to acceptance by the other parties of 

supplementary obligations which, by their nature or according to commercial usage, have 

no connection with the subject of such contracts. 

2. Any agreements or decisions prohibited pursuant to this Article shall be automatically void. 

3. The provisions of paragraph 1 may, however, be declared inapplicable in the case of: 

- any agreement or category of agreements between undertakings; 

- any decision or category of decisions by associations of undertakings; 

- any concerted practice or category of concerted practices, 

which contributes to improving the production or distribution of goods or to promoting 

technical or economic progress, while allowing consumers a fair share of the resulting 

benefit, and which does not: 

(a) impose on the undertakings concerned restrictions which are not indispensable to the 

attainment of these objectives; 

(b) afford such undertakings the possibility of eliminating competition in respect of a 

substantial part of the products in question. 

The application of Article 101 TFEU depends on a series of distinct conditions being satisfied. 

For ease of analysis Article 101 TFEU may be divided into four main questions: 

1. Is there an agreement between undertakings, decisions by associations of undertakings or 

concerted practices? 

2. Is its Object or Effect the prevention, restriction or distortion of competition within the 

Internal Market? 

3. Does it affect trade between Member States? 

4. Could it benefit from an exemption under Article 101(3) TFEU? 

Agreement between Undertakings 

Generally, in order for there to be an agreement caught under Article 101 TFEU, it is sufficient 

that at least two undertakings have expressed their joint intention to conduct themselves in a 

specific way on the market. The concept of an agreement centres on the existence of a 

concurrence of wills between the parties, the form in which it is manifested being insignificant.


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The following cases provide a good illustration of the notion of agreement and the distinction 

between agreements and unilateral actions: 

107/82 AEG – Telefunken v Commission 

25 & 26/84 Ford v Commission 

T-41/96 Bayer v Commission 

T-208/01 Volkswagen v Commission 

C-74/04 Volkswagen v Commission 

Concerted Practice 

At times it is possible for some form of cooperation between undertakings to take place without 

giving rise to an agreement. To ensure the effectiveness of the competition provisions, Article 

101 TFEU is also applicable to ‘concerted practices’. The concept of ‘concerted practice’ refers 

to forms of coordination between companies, which, without reaching the level of an agreement, 

have nevertheless established practical cooperation between them. This cooperation substitutes 

the risks of competition to the detriment of consumers. 

Concerted practice is commonly proven by showing parallel conduct between companies, which 

cannot be explained by any other reason but cooperation. It is therefore of major importance to 

distinguish between anticompetitive parallel conduct and similarity of conduct which results 

from the competitive process. Accordingly, concerted practice will not be established when 

market conditions provide an explanation to the parallel conduct or where companies adapt 

themselves intelligently and unilaterally to the existing and anticipated conduct of their 

competitors. 

On the concept of concerted practice see: 

48/69 ICI v Commission (Dyestuffs) 

40/73 etc Suiker Unie and others v Commission 

89/85 etc A Ahlstrom Osakeyhtio and others v Commission (Wood Pulp Cartel) 

C-199/92 Hüls AG v Commission 

C-204/00 etc Aalborg Portland A/S and others v Commission 

Object or Effect 

Agreements, concerted practices or decisions of associations of undertakings are caught under 

Article 101 TFEU when they have the object or effect of preventing, restricting or distorting 

competition within the Internal Market. Anti-competitive object and anti-competitive effects 

constitute alternative conditions and are distinguishable by the fact that certain forms of 

collusion between undertakings can be regarded, by their very nature, as being injurious to the 

proper functioning of normal competition. The following cases illustrate the distinction between 

object and effect and the depth of analysis called for when assessing anticompetitive effect: 

56/65 Société Technique Minière v Maschinenbau Ulm GmbH 

56/64 etc Consten & Grundig v Commission 

23/67 SA Brasserie de Haecht v Consorts Wilkin-Janssen 

T-374/94 etc European Night Services v Commission 

C-234/89 Stergios Delimitis v Henninger Brau AG 

C-209/07 Competition Authority v Beef Industry Development Society 

C-8/08 T-Mobile Netherlands and Others

C-501/06 P etc GlaxoSmithKline Services Unlimited v Commission 

T-328/03 O2 (Germany) GmbH & Co. OHG v Commission 

Ancillary Restraints 


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The concept of ancillary restraints covers restrictions of competition which are directly related to 

and necessary for the implementation of a main non-restrictive transaction and proportionate to 

it. Accordingly, a restriction which is ancillary to an agreement that does not infringe Article 

101(1) TFEU, or is exempted under Article 101(3) TFEU, will be allowed as long as it is 

objectively necessary for the operation of the agreement and is proportionate to it. 

42/84 Remia BV v Commission 

C-250/92 Gøttrup-Klim v Dansk Landbrugs Grovvareselskab AmbA 

T-112/99 Metropole Television (M6) v Commission 

C-309/99 Wouters 

Appreciable Effect (de minimis) 

The de minimis doctrine excludes from the application of Article 101 TFEU, agreements that do 

not have an appreciable effect on competition or on trade between Member States. 

Article 101(2) TFEU 

Article 101(2) TFEU provides that any agreement or decision prohibited under Article 101(1) 

TFEU and not exempted under Article 101(3) TFEU is automatically void. The automatic nullity 

under Article 101(2) TFEU only applies to those parts of the agreement affected by the 

prohibition, or to the agreement as a whole when those parts are not severable from the 

agreement itself. 

Article 101(3) TFEU 

Article 101(3) provides a possible exemption route for agreements, concerted practices or 

decisions by associations of undertakings which were found to restrict competition by their 

effect or object. Accordingly it stipulates that the provisions of Article 101(1) TFEU may be 

declared inapplicable in the case of an agreement, decision or concerted practice ‘which 

contributes to improving the production or distribution of goods or to promoting technical or 

economic progress, while allowing consumers a fair share of the resulting benefit, and which 

does not: (a) impose on the undertakings concerned restrictions which are not indispensable to 

the attainment of these objectives; (b) afford such undertakings the possibility of eliminating 

competition in respect of a substantial part of the products in question.’ 

Exemptions under Article 101(3) may take one of two forms: 

a. Block Exemptions apply Article 101(3) to categories of agreements. Agreements covered by 

block exemptions are presumed to fulfil the conditions laid down in Article 101(3) thus 

relieving the parties to these agreements from the burden under Article 2 of Regulation 

1/2003 of establishing that the agreement satisfies the conditions of Article 101(3) TFEU. A 

complete list of block exemption regulations may be found on the European Commission 

competition website (http://www.europa.eu.int/comm/dgs/competition). Agreements which 

are covered by one of the block exemption regulations are ‘legally valid and enforceable even 

if they are restrictive of competition within the meaning of [Article 101(1)]. Such agreements

T-202/98 etc Tate & Lyle plc and others v Commission 

T-28/99 Sigma Tecnologie di Rivestimento Srl v Commission 

T-99/04 AC-Treuhand AG v Commission 

C-204/00 etc Aalborg Portland A/S and others v Commission 

T-113/07 Toshiba Corp v Commission 

40/73 etc Suiker Unie and others v Commission 

C-199/92 Huls AG v Commission 


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can only be prohibited for the future and only upon formal withdrawal of the block 

exemption by the Commission or a national competition authority. Block exempted 

agreements cannot be held invalid by national courts in the context of private litigation.’ (para 

2, Guidelines on the Application of [Article 101(3) TFEU], [2004] OJ C101/97). 

b. In individual cases, the European Commission, National Competition Agencies or National 

Courts, may disapply Article 101(1) TFEU, when an agreement, although found to infringe 

Article 101(1) TFEU, satisfies the cumulative conditions in Article 101(3) TFEU. In such 

cases, it is for the party seeking to defend the validity of the agreement to satisfy the 

cumulative conditions of Article 101(3) TFEU and to show that the agreement: 

1. contributes to improving the production or distribution of goods or to promoting 

technical or economic progress. 

2. allows consumers a fair share of the resulting benefit. 

3. does not impose restrictions which are not indispensable to the attainment of these 

objectives. 

4. does not eliminate competition in respect of a substantial part of the products in 

question. 

Horizontal Agreements 

Horizontal agreements are those concluded between undertakings operating at the same level of 

production or distribution. These agreements may reduce competition when they involve price 

fixing, sharing of markets or other restrictions on business operations. They may also reduce 

competition when they involve softer forms of cooperation which increase the transparency in 

the market and reduce uncertainty concerning the competitors' conduct. On the other hand, they 

may at times yield substantial efficiencies and economic benefits, allowing companies to cope 

better with changing market realities, when they deal, for example, with research and 

developments, production, purchasing, commercialisation, standardisation, and environmental 

matters. 

Cartel Agreements 

The term ‘cartel’ usually refers to practices such as market sharing (Case IV/30.907), price fixing 

(Case C-199/92, 40/73, 2005/1071) and bid rigging (Case T-9/99) which have as their object the 

restriction of competition. When putting their case forward, competition authorities are not 

required to distinguish between agreements or concerted practice to establish the infringement 

(Case T-305/94) and may rely on the concept of single overall agreement to prove membership 

in the cartel (Case T-305/94, C-204/00, T-325/01). Undertakings that take part in cartel 

meetings may be responsible for the conduct of other cartel members (Case T-28/99). To limit 

their responsibility they must publicly distance themselves from the collusive discussions (T- 

303/02). An undertaking which did not take part in the cartel activity, may still be liable for it, if 

found to have contributed to its implementation (T-99/04). See:

T-305/94 etc Limburgse Vinyl Maatschappij NV and others v Commission 

T-325/01 Daimler Chrysler AG v Commission 

T-303/02 Westfalen Gassen Nederland v Commission 

C-97/08 Akzo Nobel and others v Commission 

T-99/04 AC-Treuhand AG v Commission 

Price Fixing 


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Price fixing shields cartel members from price competition and transfers wealth from consumers 

to the conspiring undertakings. Article 101(1) TFEU provides that agreements, decisions or 

concerted practices which have as their object or effect the direct or indirect fixing of selling 

price would be prohibited. The European courts and Commission have generally treated price 

fixing arrangements as having the object of restricting competition (above, Case C-199/92, 

40/73). Such arrangements may be caught in cases of indirect communication between 

undertakings (Case 2005/1071 etc) and would rarely benefit from exemption under Article 

101(3) (Case COMP/29.373). 

246/86 BELASCO SC v Commission (Roofing Felt) 

8/72 Vereeniging Van Cementhandelaren v Commission 

IV/25.757 Camera Care v Victor Hasselblad AB 

COMP/29.373 Visa International – Multilateral Interchange Fee 

Purchase Price Fixing 

In an effort to improve bargaining position and extract greater value in negotiation with 

suppliers, undertaking may join forces and form buying alliances. Joint purchasing may yield 

efficiencies and enhance welfare by creating economies of scale and reducing transaction costs. 

However, when members of the alliance engage in the fixing of input price, that activity falls foul 

of Article 101 TFEU, which condemns the direct or indirect fixing of purchase price. 

The European Commission and Court have generally condemned purchase price fixing as being 

anticompetitive by object (COMP/C.38.238/B.2, 123/83, C-209/07, C-264/01, C-8/08, C- 

501/06). Nonetheless, in instances where the fixing of purchase price formed part of an 

otherwise legitimate and transparent activity of a buying alliance, that activity has been analysed 

in light of its effect on the market (IV/27.958). 

COMP/C.38.281/B2 Raw Tobacco Italy 

IV/27.958 National Sulphuric Acid Association 

C-264/01 etc AOK Bundesverband v Ichthyol-Gesellschaft Cordes 

C-8/08 T-Mobile Netherlands and Others 

123/83 BNIC v Clair 

C-501/06 P etc GlaxoSmithKline Services Unlimited v Commission 

C-209/07 Competition Authority v Beef Industry Development Society Ltd 

Collusive Tendering 

A system of tendering relies on the absence of coordination or communication between the 

bidders to achieve a competitive result in areas where it might otherwise be absent. When 

tenders submitted by bidders are not the result of individual economic calculation, but of 

knowledge of the submissions of the other participants, competition is prevented, or at least 

restricted.

1061/1/1/06 Makers UK Ltd v Office of Fair Trading 

1114/1/1/09 Kier Group PLC and others v Office of Fair Trading 

Market Sharing and Non-compete Agreements 


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Article 101(1) TFEU, subsections (b) and (c) specifically refer to the limitation or control of 

markets and the sharing of markets. Market sharing allows competitors to shield themselves 

from the pressures of competition by dividing the market between them, thereby allowing them 

to exercise a large degree of market power within their exclusive territory. Note that whereas an 

agreement to fix price might still allow for residual competition between undertakings, for 

example on quality of service, market sharing, at its extreme, eliminates all forms of competition 

between undertakings. 

Horizontal Cooperation Agreements 

By contrast to the anticompetitive horizontal agreements discussed above, it is important to note 

that horizontal agreements can lead to efficiency gains, allowing medium and small sized 

companies to achieve greater efficiencies and cope with dynamic markets. The European 

Commission published Guidelines on the Applicability of Article 101 TFEU to Horizontal 

Cooperation Agreements [2011] OJ C 11/1. The Guidelines provide an analytical framework for 

the most common types of horizontal cooperation, including agreements on research and 

development, production, purchasing, information exchange, commercialisation and 

standardisation. 

Information Exchange Arrangements 

Information exchange, even between competitors, may serve legitimate goals when it concerns 

for example general information, standardisation or developments of new technologies. ‘The 

exchange of information may however have an adverse effect on competition where it serves to 

reduce or remove uncertainties inherent in the process of competition… Whether or not 

exchange of information has an appreciable effect on competition will depend on the 

circumstances of each individual case: the market characteristics, the type of information and the 

way in which it is exchanged…’ (see UK OFT Guidelines on Agreements and Concerted 

Practices, OFT 401, 3.17-3.23) 

T-34/92 Fiatagri v Commission (UK Agricultural Tractor Registration Exchange) 

T-35/92 John Deere v Commission 

C-89/85 A Ahlström Osakeyhtiö and others v Commission (WoodPulp II) 

C-8/08 T-Mobile Netherlands BV and others 

Vertical Agreements 

Vertical agreements are agreements entered into between companies operating at different levels 

of the production or distribution chain. These agreements differ in their potential 

anticompetitive effect from horizontal agreements. Whereas the latter may eliminate competition 

between competing undertakings, the former concerns the relationship between upstream 

operator and downstream distributor or retailer. As a result, vertical agreements often generate 

positive effects and would raise concerns predominantly when there is some degree of market 

power at the upstream and/or downstream levels. Of major significance to the application of 

Article 101 TFEU to vertical agreements are the Vertical Block Exemption and Vertical


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Guidelines. The 2010 Vertical Guidelines set out the principles for the assessment of vertical 

agreements under Article 101(1) and 101(3) TFEU. See Commission Notice - Guidelines on 

Vertical Restraints, [Brussels, SEC(2010) 411] [2010] OJ C 130/1. 

The Vertical Block Exemption identifies categories of agreements which can be regarded as 

normally satisfying the conditions laid down in Article 101(3) TFEU. It provides exemption to 

vertical agreements when the market share held by each of the parties to the agreement on the 

relevant market does not exceed 30%, and the agreement does not contain hard core or excluded 

restrictions (Article 4, 5, Vertical Block Exemption). See: Regulation 330/2010 on the application 

of Article 101(3) of the Treaty on the Functioning of the European Union to categories of 

vertical agreements and concerted practices ([2010] OJ L 102/1). 

Exclusive Distribution Agreements 

Exclusive distribution agreements generally involve a supplier’s commitment to sell his products 

to a single distributor in a designated territory, in return for a commitment from the distributor 

not to engage in active sales in other exclusively allocated territories. Such agreements are 

exempted by the Vertical Block Exemption when the market share held by each of the 

undertakings party to the agreement on the relevant market does not exceed 30%, and the 

agreement does not contain hard core restrictions (Article 4, Vertical Block Exemption). When 

combined with selective distribution, these agreements are exempted if active selling in other 

territories is not restricted. On exclusive distribution agreements see for example: 

03/2005 Sarl Kitch Moto v SA Suzuki France 

Selective Distribution Agreements 

Selective distribution agreements restrict the number of distributors by applying selection criteria 

for admission as an authorised distributor. These systems are commonly used to maintain a 

specialist distribution chain capable of providing specific services to branded high-quality or 

high-technology products. Purely qualitative selective distribution systems are in general 

considered to fall outside Article 101(1) for lack of anti-competitive effects (Case 26/76). Both 

qualitative and quantitative selective distribution systems are exempted by the Vertical Block 

Exemption when the market shares of the supplier and buyer do not exceed 30 per cent, 

provided active selling by the authorised distributors to each other and to end users is not 

restricted. On selective distribution systems, see: 

26/76 Metro SB-Großmarkte GmbH & Co. KG v Commission 

C-439/09 Pierre Fabre v Président de l’Autorité de la concurrence 

Single Branding Agreements 

A non-compete arrangement is based on a buyer’s obligation to purchase all or most of his 

requirements of a particular group of products from one supplier. These agreements are 

exempted under the Vertical Block Exemption as long as the market share of both supplier and 

buyer each do not exceed 30%, and subject to a limitation in time of five years for the noncompete 

obligation. 

T-65/98 Van den Bergh Foods Ltd v Commission


Article 102 TFEU: 


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Any abuse by one or more undertakings of a dominant position within the internal market 

or in a substantial part of it shall be prohibited as incompatible with the internal market 

insofar as it may affect trade between Member States. Such abuse may, in particular, 

consist in: 

(a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading 

conditions; 

(b) limiting production, markets or technical development to the prejudice of consumers; 

(c) applying dissimilar conditions to equivalent transactions with other trading parties, 

thereby placing them at a competitive disadvantage; 

(d) making the conclusion of contracts subject to acceptance by the other parties of 

supplementary obligations which, by their nature or according to commercial usage, have 

no connection with the subject of such contracts. 

For ease of analysis Article 102 TFEU may be divided into four main questions: 

1. Is there a dominant undertaking or a group of undertakings? 

2. Is this dominant position within the Internal Market or in a substantial part of it? 

3. Is this dominant position being abused? 

4. Could this abuse of a dominant position affect trade between Member States? 

Although Article 102 TFEU does not include an exempting provision similar to Article 101(3) 

TFEU, conduct which is regarded as abusive may escape the prohibition in Article 102 TFEU if 

the dominant undertaking can objectively justify it or show that the actions generate efficiencies 

which outweigh the anticompetitive effects. One can therefore qualify the third question by 

asking whether the undertaking’s conduct can be objectively justified. 

The analysis of Article 102 TFEU through these questions is illustrated below. 

Dominant Position 

Dominance is a position of economic strength enjoyed by an undertaking which enables it to 

prevent effective competition being maintained in the relevant market, by affording it the power 

to behave to an appreciable extent independently of its competitors, customers and its 

consumers. The concept of dominance reflects the notion of market power and requires a 

preliminary consideration of the relevant market and its characteristics. 

The process involves two distinct steps. First the boundaries of competition need be identified 

by defining the relevant product and geographic markets (see discussion in Chapter 2 above). 

Once the market has been defined, it is possible to proceed to the next step and assess whether 

the undertaking enjoys a position of dominance in that market. The analysis is based on, among


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other things, the market shares of the undertaking and its competitors, barriers to expansion and 

entry, and the market position of buyers. The following cases illustrate the process of 

establishing dominance and the weight attributed to market shares and to other market 

characteristics: 


85/76 Hoffmann-La Roche v Commission 

C-62/86 AKZO Chemie BV v Commission 



IV/33.384 Soda Ash-Solvay 

IV/30.787 Eurofix-Bauco/Hilti 

77/77 BP and others v Commission 

T-125/97 The Coca-Cola Company v Commission 

Abuse 

Dominance in itself is not prohibited under Article 102 TFEU. The Article targets the abuse of a 

dominant (or collective dominant) position. ‘The concept of abuse is an objective concept 

relating to the behaviour of an undertaking in a dominant position, which is such as to influence 

the structure of a market, where, as a result of the very presence of the undertaking in question, 

the degree of competition is weakened and which, through recourse to methods different from 

those which condition normal competition in products or services on the basis of the 

transactions of commercial operators, has the effect of hindering the maintenance of the degree 

of competition still existing in the market or the growth of that competition.’ (Case 85/76 

Hoffmann-La Roche v Commission). 

The realm of abuse has been influenced by the relatively broad goals of Article 102 TFEU, as 

laid down by the Court of Justice. See for example: 

C-52/09 Konkurrensverket v TeliaSonera Sverige AB 

C-468/06 Sot. Lélos kai Sia and others v GlaxoSmithKline AEVE 

Predatory Pricing 

Aggressive price rivalry is central to a healthy competitive market as it ensures that firms sell 

their products at the lowest profitable price. Yet, under certain circumstances price competition 

may harm consumers rather than benefit them. Such is the case when a dominant firm abuses its 

dominant position by engaging in predatory pricing. The practice involves the deliberate 

lowering of prices by the dominant undertaking in the short term to a loss making level, in an 

attempt to drive competitors out of the market or to prevent competitors from entering the 

market. Then, having eliminated the competition through predation, the dominant undertaking is 

capable of raising prices above competitive levels, ultimately harming consumers by charging 

higher prices. 

C-62/86 AKZO Chemie BV v Commission 

C-333/94 P Tetra Pak International SA v Commission 


C-202/07 P France Télécom SA v Commission

Rebates 


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The European law concerning rebates generally distinguishes between quantity discounts, which 

are linked solely to the volume of purchases from the manufacturer concerned, and loyalty 

inducing rebates. Whereas the former are considered valuable and acceptable components of 

price competition, the latter are held to be abusive. The traditional analysis of loyalty rebates, as 

evident from the cases below, has been criticised as too formalistic, failing to take into account 

the effects different discount schemes have on competition. In its Guidance Paper, the 

European Commission has advanced a more nuanced ‘effects-based approach’. That approach 

was manifested, to some extent, in the Commission’s decisions in Prokent/Tomra and Intel 

Corporation. However, the Court of Justice of the European Union has yet to endorse it (T- 

155/06, appeal pending C-549/10 P). 

85/76 Hoffmann-La Roche & Co. v Commission 


T-203/01 Manufacture française des pneumatiques Michelin v Commission 

T-219/99 British Airways v Commission 

C-95/04 British Airways v Commission 

T-155/06 Tomra Systems and Others v Commission 

COMP/C-3/37.990 Intel Corporation 

T-66/01 Imperial Chemical Industries Ltd v Commission 

Margin Squeeze 

Margin squeeze (also known as price squeeze) refers to a situation where a vertically integrated 

dominant undertaking engages in a strategy which aims to favour its own downstream 

operations. The strategy may, for example, take place when the dominant undertaking supplies 

input both to its own downstream operation and to other competitors in the downstream market 

and increases the price charged to competitor, to squeeze their profit and improve the position 

of its own downstream operation. 

C-280/08 P Deutsche Telekom AG v Commission 

1016/1/1/03 Genzyme Limited v Office of Fair Trading 

COMP/38.784 Wanadoo España v Telefónica 

C-52/09 Konkurrensverket v TeliaSonera Sverige AB 

Excessive Pricing 

A dominant undertaking may choose to take advantage of its market power and increase the 

price of its products above competitive levels. Such practice may amount to an abuse of a 

dominant position when it involves the imposition of unfair purchase or selling prices or the 

application of dissimilar conditions to equivalent transactions. 

Excessive prices may be analysed using two of the sub-sections in Article 102 TFEU. Under 

Article 102(a) TFEU they may be challenged when they consist of: ‘directly or indirectly 

imposing unfair purchase or selling prices or other unfair trading conditions’. Under Article 

102(c) TFEU they may be objected to when they result in a discriminatory practice. The 

following cases provide an illustration of the Commission’s and European Courts’ approach to 

excessive prices: 

26/75 General Motors v Commission


COMP/C-1/36.915 Deutsche Post AG 

HC05C00510 British Horseracing Board v Victor Chandler International 

A3/2006/0126 At the Races v The British Horse Racing Limits and others 

Refusal to Supply 


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The finding of dominance imposes responsibility on the dominant undertaking not to allow its 

behaviour to impair effective competition. In some cases, this responsibility may lead to 

restrictions on the dominant undertaking’s freedom to choose its trading partners and to refuse 

to supply others with services or goods. Such will be the case when a dominant undertaking 

operates at both the upstream and downstream levels and refuses to supply a competitor which 

operates at the down stream level. Such refusal to supply is contrary to Article 102 TFEU when 

it eliminates competition in the downstream market (Case 6/73 below). Another form of refusal 

to supply which is objectionable occurs when a dominant undertaking controls the provision of 

an essential infrastructure, uses that essential facility, but refuses other companies access to that 

facility without objective justification (Case IV/34.689 below). In other cases a refusal to supply 

may involve a refusal to licence intellectual property rights (Cases C-241/91P, T-504/93, C- 

418/01 below). 

The analysis of refusal to supply is traditionally based on the finding of two markets; an 

upstream market dominated by the undertaking and a downstream market in which that 

undertaking compete with others. To improve its position downstream, the dominant 

undertaking refuses to supply the competing downstream operators. However, the requirement 

for two markets has been relaxed in some instances (Case C-418/01 below). 

6/73 Commercial Solvents v Commission 

77/77 BP and others v Commission 

IV/32.279 BBI and others v Boosey & Hawkes plc 

IV/34.689 Sea Containers Ltd/Stena Sealink 

C-241/91P etc RTE & ITP v Commission (The Magill case) 

C-7/97 Oscar Bronner GmbH Co. KG v Mediaprint 

T-504/93 Tierce Ladbroke SA v Commission 

C-418/01 IMS Health GmbH & Co. OHG v NDC Health GmbH KG 

A3/2002/1380 etc Intel Corp v. Via Technologies Inc 

T-201/04 Microsoft Corp. v Commission 

C-468/06 etc Sot. Lélos kai Sia and others v GlaxoSmithKline AEVE 

T-301/04 Clearstream v Commission 

HC10C02364 Purple Parking Ltd & Anor v Heathrow Airport Ltd 

Tying and Bundling 

Tying and bundling commonly refer to a situation where a dominant undertaking links the sale 

of separate products requiring customers who wish to purchase one product to purchase the 

other as well. Such practice enables the dominant firm to leverage its market power from the 

market where it enjoys a dominant position to the tied product’s market where it faces 

competition. This may be done by contractual arrangements, through discounts or other 

incentives. The practice may involve pure bundling, where the products are only offered together 

and cannot be purchased separately. Alternatively it may involve mixed bundling, where products 

are available separately outside the bundled package, but are offered at a discounted price when 

purchased as a bundle. Article 102(d) TFEU makes direct reference to these practices and treats


P a g e | 14 

as abusive ‘making the conclusion of contracts subject to acceptance by the other parties of 

supplementary obligations which, by their nature or according to commercial usage, have no 

connection with the subject of such contracts.’ 

C-333/94 P Tetra Pak International SA v Commission 252 

T-201/04 Microsoft Corp. v Commission 253 

COMP/C-3/39.530 Microsoft (Tying) 256 

Two lines of defence are noteworthy when considering claims of tying. The first stems from the 

need to identify the existence of two products or two markets in order to establish tying. 

Consequently, the dominant undertaking will often attempt to establish that the two products 

actually comprise one and therefore by their nature and characteristics should be sold together. 

Another common, yet rather more general, line of defence addresses the objective justifications, 

such as economies of scale, efficiencies and safety considerations which may justify tying the 

products. See below, the discussion on objective justification. 

Objective Justification and Efficiency Defence 

Article 102 TFEU does not include an exempting provision similar to Article 101(3) TFEU. 

Nonetheless, seemingly abusive conduct, may escape prohibition under Article 102 TFEU if the 

dominant undertaking can provide an objective justification for its actions or show that the 

actions generate efficiencies which outweigh the anticompetitive effects. These defence claims 

are difficult to prove and have commonly been rejected by the Commission and Courts. The 

Commission’s proposed effects based approach to Article 102 TFEU may open the way for 

greater consideration of these claims. 

T-228/97 Irish Sugar v Commission 

T-30/89 Hilti v Commission 

T-191/98 Atlantic Container Line AB and others v Commission 


C-95/04 P British Airways v Commission 

T-228/97 Irish Sugar plc v Commission 

COMP/37.990 Intel Corporation 

An Economic Approach to Article 102 TFEU 

The traditional approach to Article 102 TFEU described earlier encompasses two distinct steps: 

first, dominance needs to be established, following which the abuse of dominance is assessed. 

In July 2005 the Commission published a consultation paper titled ‘An Economic Approach to 

[Article 102 TFEU]’ in which the Economic Advisory Group for Competition Policy (EAGCP) 

questioned the merit of this traditional approach. The paper advocates an effects-based approach 

focusing on competitive harm, and refrains categorizing certain behaviours as abusive. It stems 

from the understanding that the same types of actions may result in different effects on the 

market, some abusive and others not. Similarly, different types of actions may lead to the same 

anticompetitive effect. It is important to note that the paper has no binding power, yet it has 

stimulated the debate over the realm of Article 102 TFEU and raised important questions as to 

its past and present application. 

In December 2005 the Commission published its ‘Discussion paper on the application of 

[Article 102 TFEU] to exclusionary abuses’ (the 2005 Discussion Paper). The paper outlined the


P a g e | 15 

traditional analysis under Article 102 TFEU while injecting a more economically inspired 

approach to the assessment of abuse. 

The ‘Guidance on the Commission’s enforcement priorities in applying [Article102 TFEU] to 

abusive exclusionary conduct by dominant undertakings’ was published in late 2008 (the 

Guidance Paper). This was the final phase of a lengthy consultation process in which the 

Commission reviewed its approach to dominance and the abuse of dominance under Article 102 

TFEU. The Guidance Paper lays down the Commission’s modern approach to Article 102 

TFEU cases and delivers several of the innovative elements which were aired in the 

Commission’s earlier 2005 Discussion Paper. 

The Guidance paper does more than merely summarising existing case law on Article 102 

TFEU; it seeks to influence its interpretation and widen its analytical scope. Achieving this aim, 

however, may be hampered by the institutional division within Europe. Under EU law the 

Commission is limited in its ability to widen the analytical framework of Article 102 TFEU. 

Indeed the Guidance Paper stipulates that ‘it is not intended to constitute a statement of the law 

and is without prejudice to the interpretation of [Article 102 TFEU] by the [Court of Justice and 

the General Court] ’.(para 3) 

Nonetheless, the Guidance Paper embodies some of the effect based spirit which dominated the 

consultation on Article 102 TFEU. Most striking is the Commission’s attempt to introduce a 

new efficiency defence under Article 102. This has been favoured by the Commission for some 

time and would be structured in the same way as Article 101(3) TFEU, which provides the 

mechanism for saving agreements between undertakings which would be anticompetitive, but 

for the efficiencies provided. 

It has been argued that the Guidance Paper is a relatively short document and provides a very 

limited account of these new concepts. New effect-based variants are considered but are 

generally left with no clear details as to their application and limiting principles. In this respect 

the Guidance puts forward a suboptimal framework; outlining new principles but refraining 

from dissecting them at the level of detail required for the concepts to be relied upon in practice. 

One would expect these concepts to mature through decision making. For example, in the area of 

rebates, noteworthy are the Commission decisions in COMP/E-1/38.113 Prokent/Tomra (page 212 

below) and COMP/37.990 Intel Corporation (page 214 below). In both cases the Commission 

considered ‘actual effect’ in line with its recent effect based agenda. Interestingly, while the 

Commission is introducing effect based variants into its analysis, the European Courts have so 

far retained a reserved approach. A number of cases highlight what may be seen as a continuing 

formalistic approach to the application of Article 102 TFEU. See for example: France Télécom SA 

v Commission, (pages 191, 194), British Airways v Commission (pages 208, 210), Microsoft Corp. v 

Commission, (page 243), Sot. Lelos (page 246), Tomra Systems and Others v Commission (page 212), 

Imperial Chemical Industries Ltd v European Commission (page 217), and Clearstream v Commission (page 

249).

Enforcement – The National Courts 

Regulatory Background 


P a g e | 16 

The enforcement of competition law in the National Courts is primarily governed by the 

procedural rules of each of the Member States. At the European Union level, of major 

importance is Council Regulation No 1/2003 on the Implementation of the Rules on 

Competition Laid Down in [Articles 101 and 102 TFEU], [2003] OJ L1/1. In addition, the 

cooperation between the Commission and the courts of the EU Member States is addressed in 

the ‘Commission Notice on the Co-operation between the Commission and the Courts of the 

EU Member States in the Application of [Articles 101 and 102 TFEU], [2004] OJ C 101/54. 

Actions for Damages 

Competition law may be used in the National Court in one of two ways, either as a shield or as a 

sword. The use of competition law as a sword commonly involves ‘actions for injunctive relief’ 

or ‘claims for damages’. 

Actions for damages for loss suffered as a result of an infringement of Article 101 or 102 TFEU 

are commonly divided into two categories, each carrying a different ‘public value’. The first 

category includes ‘follow-on’ damage actions. These originate from a public investigation and use 

the authorities’ decision to support the claim for compensation in court. By doing so, private 

parties overcome part of the risk and costs associated with litigating a competition case as they 

rely on the already exercised investigative power of the public authority to substantiate the claim. 

The second category concerns ‘stand-alone’ damage actions. These by their nature are more 

complex as they require the claimant to prove not only causation and damage but also the 

violation of competition law. 

The European right to sue in damages in competition law cases was recognised in the seminal 

case of Courage v Crehan (C-453/99). 

C-453/99 Courage Ltd v Bernard Crehan 

C-295/04 etc Vincenzo Manfredi v Lloyd Adriatico Assicurazioni 

C-242/95 GT-Link A/S v De Danske Statsbaner 

The Measure of Damages 

Damages may be set at compensatory levels or include exemplary or punitive elements. In the 

absence of Europen Union provisions on this point, each Member State may establish different 

rules to govern the level and type of damages (C-295/04, A3/2008/0080). 

In December 2009, the European Commission published a study on ‘Quantifying Antitrust 

Damages - Towards Non-binding Guidance for Courts’. The study outlines the various methods 

which may be adopted by courts when quantifying damages. The process involves two main 

stages. First, the court will assess what would have been the position absent the anticompetitive 

activity (the counterfactual scenario). Then, it will estimate the final value of damage. 

More generally, note that under European Union law, compensation in damages includes the 

award of interest. Some may argue that this brings the level of single damages in Europe 

(including interest) closer to the treble damages in the US (which exclude interest).

C-295/04 etc Vincenzo Manfredi v Lloyd Adriatico Assicurazioni 

A3/2008/0080 Devenish Nutrition Ltd v Sanofi-Aventis SA (France) and Others 

CH 1998 C801 Bernard Crehan v Inntrepreneur Pub Company and another 

Euro Defence 


P a g e | 17 

Articles 101 and 102 TFEU may be used as part of a defence claim, most commonly through the 

application of the civil sanction of nullity of Article 101(2) TFEU against claims for breach of 

contract. Such claims, often referred to as the ‘Euro Defence’, have, on occasion, been 

sceptically assessed by the courts which feared that they are used as a general escape route for 

those wishing to avoid bad bargains. 

A3 2002/1380 etc Intel Corporation v Via Technologies Inc 

A3 2005/2316 Sportswear Spa v Stonestyle Ltd 

Burden and Standard of Proof in Competition Cases 

Article 2, Regulation 1/2003 stipulates that ‘In any national or [Union] proceedings for the 

application of [Articles 101 and 102 TFEU], the burden of proving an infringement of [Article 

101(1) or of Article 102 TFEU] shall rest on the party or the authority alleging the infringement. 

The undertaking or association of undertakings claiming the benefit of [Article 101(3) TFEU] 

shall bear the burden of proving that the conditions of that paragraph are fulfilled.’ 

Whereas the burden of proof in all Member States is identical, the standard of proof in the 

different jurisdictions varies and may, for example, be based on ‘balance of probabilities’ or 

‘winning the conviction of the court’. The claimant’s evidentiary burden may be alleviated to 

compensate for the difficulty in establishing a claim. See for example: 

C-204/00 etc Aalborg Portland and others v Commission 

Standing and Passing on Defence 

Union law is silent on the use of the ‘passing on defence’ in competition cases, leaving this area 

to be governed by the laws of each of the European Member States. On the treatment of passed 

on damages see for example: 

A3/2008/0080 Devenish Nutrition Ltd v Sanofi-Aventis SA (France) and Others 

On the closely related question of the standing of indirect purchasers, the Court of Justice held 

that any individual can rely on a breach of Article 101(1) TFEU before a national court and claim 

compensation for the harm suffered where there is a causal relationship between that harm and 

the prohibited agreement or practice. See: 

C-453/99 Courage Ltd v Bernard Crehan 

C-295/04 Vincenzo Manfredi v Lloyd Adriatico Assicurazioni 

Jurisdiction and Applicable Law 

The jurisdiction of the National Court to hear cases is largely governed by Council Regulation 

44/2001 (which replaced the Brussels and Lugano Conventions). Under the Regulation ‘persons


P a g e | 18 

domiciled in a Member State shall, whatever their nationality, be sued in the courts of that 

Member State.’ (Article 2). Special jurisdiction may be established in matters relating to a 

contract, in the courts located in the place of performance of the obligation in question (Article 

5(1)). In matters relating to tort, delict or quasi-delict, jurisdiction may be established in the 

courts for the place where the harmful event occurred or may occur (Article 5(3)). 

The Relative Underdevelopment of Private Enforcement in Europe 

The use of competition law in national courts may generate public value by supplementing public 

enforcement of competition law and enhancing its deterrent effect. As such, it has an important 

role in sustaining a competitive economy by harnessing the private parties’ economic interests to 

ensure the full effectiveness of competition rules. In addition to its supplementary role to public 

enforcement, private enforcement promotes the individual rights of parties by providing a 

channel for corrective justice through compensation and injunctive relief. In doing so it 

complements the public system and safeguards the rights of private individuals. 

Three main publications shed light on the obstacles which hampered private enforcement in 

Europe. The Ashurst Study, published in August 2004, provided a detailed account of the state of 

private litigation in Europe at the time and identified the main obstacles and possible ways to 

overcome them. (The Ashurst Study on Claims for Damages in Case of Infringement of [EU] 

Competition Rules (31 August 2004)) It portrayed a gloomy picture of the state of damage 

actions in Europe, at the time, and described it as one of ‘astonishing diversity and total 

underdevelopment’. In December 2005, the Commission initiated a consultation process 

following the publication of a Green Paper and Staff Working Paper on Antitrust Damages Actions. 

(Green Paper, Damage Actions for Breach of the [EU] Antitrust Rules. COM(2005) 672 final; 

Commission Staff Working paper – Annex to the Green Paper, published on 19 Dec 2005). In 

these papers the Commission highlighted the significance it attributes to the development of 

private enforcement as a means to promote vigorous competition. The papers focus on damages 

actions, outlining the main obstacles to these actions and the range of options that may be used 

to resolve them. The papers stimulated a wide ranging debate on the obstacles to, and future of, 

private enforcement. This consultation led to the publication, in April 2008, of the White Paper 

on Damages Actions for Breach of the [EU] Antitrust Rules. The White Paper, accompanied by 

a Staff Working Paper and a detailed Impact Assessment Study, outlines the measures which the 

Commission suggests in order to stimulate a balanced private enforcement regime which would 

complement its public enforcement. In comparison to the Green paper, the White Paper 

advances a relatively conservative package of reforms. This, although disappointing in some 

respects, is a reflection of the Commission’s attempt to design a balanced reform package which 

would face less resistance at national level. 

In an attempt to strengthen the role played by competition law in National Courts, and as a 

follow up to the White Paper on Damage Actions, the European Commission considered the 

publication of a Directive on Damage Actions. The draft Directive was however withdrawn in 

2009. Another initiative, which is not competition specific but is likely to play a significant role in 

promoting private actions in competition cases, took place in 2011 when the Commission 

launched a public consultation aimed at achieving a coherent approach toward collective redress 

in Europe. The consultation set to identify the common legal principles which underpin 

collective actions across the EU.

Enforcement – The European Commission 

Prioritisation of enforcement 


P a g e | 19 

The Commission is not required to conduct an investigation in every case (T-24/90, T-229/05). 

It is entitled to accord different weights to the complaints brought before it according to the 

Union interest. The discretion to prioritise is not unlimited. The Commission is required to 

assess in each case how serious the alleged interferences with competition are, and is under an 

obligation to provide precise and detailed reasons for its decision. 

C-119/97 P Ufex and others v Commission 

T-427/08 CEAHR v Commission 

Inspection Powers 

Article 20, Regulation 1/2003, lays down the Commission’s powers of inspections and authorises 

Commission officials to enter any premises, examine books and other records relating to 

business, and demand from members of staff explanations on facts and documents relating to 

the subject matter of the inspection. Undertakings are required to submit to the inspection 

ordered by a decision of the Commission. Failure to do so results in the imposition of fines as 

provided in Article 23 and 24 of Regulation 1/2003. In the event that undertakings refuse to 

submit to an inspection as ordered, such inspection will be conducted with the assistance of the 

relevant Member States’ enforcement authorities in accordance with national laws and when 

necessary following an authorisation of the judicial authority. 

Article 21, Regulation 1/2003, widens the Commission’s inspection powers in relation to private 

premises. Subject to the authorisation of the national judicial authority, the Commission may be 

empowered to conduct an inspection of private premises, land and means of transport. Such 

inspection targets business records and other documents linked to the anticompetitive cartels 

that are kept in the homes of the directors, managers and other members of staff. 

Limited Right against Self-incrimination 

The Commission is empowered to take statements and interview natural and legal persons who 

consent to be interviewed for the purpose of collecting information relating to the subject-matter 

of an investigation. When complying with a decision of the Commission, undertakings have a 

right of silence only to the extent that they would be compelled to provide answers which might 

involve an admission on their part of the existence of an agreement, which it is incumbent upon 

the Commission to prove. However, undertakings are obliged to answer factual questions and to 

provide documents, even if this information may be used to establish against them, or against 

another undertaking, the existence of an infringement (Recital 23, Regulation 1/2003). Note also 

Articles 3 and 4, Regulation 773/2004, which deal with the Commission’s power to take 

statements and ask questions during inspections. On the limited right against self incrimination, 

see: 

374/87 Orkem v Commission 

T-112/98 Mannesmannröhren-Werke AG v Commission

Professional Legal Privilege 


P a g e | 20 

European Union law recognises the protection of written communications between lawyer and 

client. However, under EU law such protection does not extend to communications with inhouse 

counsel. 

155/79 AM & S Europe Ltd v Commission 

T-30/89 Hilty AG v Commission 

C-550/07P Akzo Nobel Chemicals Ltd v Commission 

Finding and Termination of Infringement - Remedies 

Article 7, Regulation 1/2003, sets out the Commission’s powers to find and terminate an 

infringement of Article 101 or 102 TFEU. The Commission is empowered for that purpose to 

impose behavioural or structural remedies which are proportionate to the infringement 

committed and necessary to bring the infringement effectively to an end. Structural remedies will 

be imposed where there is no equally effective behavioural remedy, or where an equally effective 

behavioural remedy is more burdensome for the undertaking concerned. Note that structural 

remedies would only be proportionate where there is a substantial risk of a lasting or repeated 

infringement that derives from the very structure of the undertaking (Recital 12, Regulation 

1/2003). 

The Commission may order the termination of abuse under Article 102 TFEU. Such decision 

may include an order to perform certain acts which have been wrongfully withheld as well as 

prohibiting the continuation of certain actions (Case 6/73). 

The Commission may order the termination of an anticompetitive agreement under Article 101 

TFEU but does not have the power to order a party to enter into contractual relations following 

such infringement (Case T-24/90): 

T-24/90 Automec v Commission (Automec II) 

Commitments 

Article 9, Regulation 1/2003 stipulates that ‘Where the Commission intends to adopt a decision 

requiring that an infringement be brought to an end and the undertakings concerned offer 

commitments to meet the concerns expressed to them by the Commission in its preliminary 

assessment, the Commission may by decision make those commitments binding on the 

undertakings. Such a decision may be adopted for a specified period and shall conclude that 

there are no longer grounds for action by the Commission.’ Commitment decisions are not 

appropriate in cases where the Commission intends to impose a fine. See, for example, the 

following decisions: 

C-441/07 P Alrosa Company Ltd v Commission 

COMP/38.173 FA Premier League 

COMP/39.116 Coca Cola 

COMP/39.388 German Electricity Wholesale Market

Fines 


P a g e | 21 

Regulation 1/2003 sets the financial penalty in cases of intentional or negligent infringement of 

Articles 101 and 102 TFEU. In general, the fine shall not exceed 10% of the undertaking’s total 

turnover in the preceding business year. On 28 June 2006, the Commission adopted revised 

guidelines on the method of setting fines in cases of infringement of Articles 101 and 102 

TFEU. The Guidelines introduce new methodology for the calculation of fines within the limits 

set by Regulation 1/2003, [2006] OJ C 210/2. More generally on the setting of fines, see: 

100/80 etc Musique Diffusion Francaise SA v Commission 

C-189/02 P etc Dansk Rørindustri A/S and others v Commission 

T-101/05 etc BASF AG v Commission 

Limitation Periods 

Article 25, Regulation 1/2003 stipulates that the Commission’s power to impose penalties is 

subject to the following limitation periods: ‘(a) three years in the case of infringements of 

provisions concerning requests for information or the conduct of inspections; (b) five years in 

the case of all other infringements.’ 

‘Time shall begin to run on the day on which the infringement is committed. However, in the 

case of continuing or repeated infringements, time shall begin to run on the day on which the 

infringement ceases... Any action taken by the Commission or by the competition authority of a 

Member State for the purpose of the investigation or proceedings in respect of an infringement 

shall interrupt the limitation period for the imposition of fines or periodic penalty payments. The 

limitation period shall be interrupted with effect from the date on which the action is notified to 

at least one undertaking or association of undertakings which has participated in the 

infringement... Each interruption shall start time running afresh. However, the limitation period 

shall expire at the latest on the day on which a period equal to twice the limitation period has 

elapsed without the Commission having imposed a fine or a periodic penalty payment... The 

limitation period for the imposition of fines or periodic penalty payments shall be suspended for 

as long as the decision of the Commission is the subject of proceedings pending before the 

Court of Justice.’ In the area of cartel enforcement the notion of continuing or repeated 

infringement has been of particular significance. See for example: 

COMP/39406 Marine Hoses 

T-279/02 Degussa v Commission 

COMP/F/38.121 Fittings 

COMP/IV/30.064 Cast iron and steel rolls 

T-147/09 Trelleborg Industrie v Commission 

Full and Effective Judicial Review 

Article 263 of the Treaty on the Functioning of the European Union (ex Article 230 EC) 

establishes the framework for judicial review under which the Court of Justice of the European 

Union will review the legality of the actions taken by the Commission. The grounds for review 

under Article 263 TFEU include lack of competence, infringement of an essential procedural 

requirement, infringement of the Treaties or of any rule of law or misuse of powers. 

On appeal, the Court undertakes a full and comprehensive review of the Commission decision 

making (Case C-272/09 P). The principle of effective judicial protection is a general principle of


P a g e | 22 

European Union law, which is also expressed by Article 47 of the Charter of Fundamental 

Rights of the European Union (endorsed by the Union in Article 6 TEU). Note however that 

when the contested Commission decision involves complex economic analysis, the European 

courts have generally limited their appraisal on appeal to examination of the relevance of the 

facts and legal circumstances on which the Commission based its decision, or to verifying that 

the relevant procedural rules have been complied with. (Case 42/84, Case C-7/95P). The courts 

have also limited their judicial review when the Commission decision involved ‘complex 

technical appraisal’ (Case T-201/04). 

42/84 Remia BV and others v Commission 

C-7/95P John Deere v Commission 

T-201/04 Microsoft Corp v Commission 

C-272/09 P KME Germany AG v Commission 

C-389/10P Chalkor AE Epexergasias Metallon v Commission 484 

43509/08 Affaire a. Menarini Diagnostics s.r.l. c. Italie 484 

Leniency Programme 

The European leniency programme was hailed as being tremendously successful and generated 

the vast majority of cartel investigations and decisions in Europe. A ‘third generation’ of the 

leniency notice entered into force in December 2006. See Commission Notice on Immunity 

from Fines and Reduction of Fines in Cartel Cases (2006 OJ C 298/17). 

Settlement Procedure in Cartel Cases 

After the initiation of proceedings pursuant to Article 11(6) of Regulation 1/2003, the 

Commission may set a time limit within which the parties may indicate in writing that they are 

prepared to engage in settlement discussions with a view to possibly introducing settlement 

submissions. (Article 10a, Regulation (EC) No 773/2004 (as amended by Regulation 622/2008) 

The Commission published a notice which elaborates on settlement procedures. See: Notice on 

the Conduct of Settlement procedures in View of the Adoption of Decisions Pursuant to Article 

7 and Article 23 of Council Regulation (EC) No 1/2003 in Cartel Cases [2008] OJ C 167/1. For 

an example of a cartel settlement adopted in accordance with the above procedure, see: 

COMP/38.511 DRAMs


Selected Cases 

T-Mobile Netherlands BV and others v 

Raad van bestuur van de Nederlandse Mededingingsautoriteit 

Case C-8/08 

Court of Justice, [2009] 5 CMLR 11 

Facts 

P a g e | 23 

Horizontal Agreements 

Information Exchange 

Concerted practice 

A reference for a preliminary ruling which was made in proceedings between T-Mobile Netherlands BV 

and the Netherlands competition authority. The proceedings at national level concerned a decision by the 

Netherlands competition authority in which five mobile operators were fined for exchanging confidential 

information at a single meeting with the aim of restricting competition. 

Held 

With regard to the exchange of information between competitors, it should be recalled that each 

economic operator must determine independently the policy which he intends to adopt on the internal 

market. ‘While it is correct to say that this requirement of independence does not deprive economic 

operators of the right to adapt themselves intelligently to the existing or anticipated conduct of their 

competitors, it does, none the less, strictly preclude any direct or indirect contact between such operators 

by which an undertaking may influence the conduct on the market of its actual or potential competitors 

or disclose to them its decisions or intentions concerning its own conduct on the market where the object 

or effect of such contact is to create conditions of competition which do not correspond to the normal 

conditions of the market in question, regard being had to the nature of the products or services offered, 

the size and number of the undertakings involved and the volume of that market...’ (paras 32- 3) 

‘At paragraphs 88 et seq. of Deere v Commission, the Court therefore held that on a highly concentrated 

oligopolistic market, such as the market in the main proceedings, the exchange of information was such 

as to enable traders to know the market positions and strategies of their competitors and thus to impair 

appreciably the competition which exists between traders. It follows that the exchange of information 

between competitors is liable to be incompatible with the competition rules if it reduces or removes the 

degree of uncertainty as to the operation of the market in question, with the result that competition 

between undertakings is restricted...’ (paras 34, 35) 

‘while not all parallel conduct of competitors on the market can be traced to the fact that they have 

adopted a concerted action with an anti-competitive object, an exchange of information which is capable 

of removing uncertainties between participants as regards the timing, extent and details of the 

modifications to be adopted by the undertaking concerned must be regarded as pursuing an anticompetitive 

object, and that extends to situations, such as that in the present case, in which the 

modification relates to the reduction in the standard commission paid to dealers.’ (para 41) 

Comment 

Note that the Court of Justice discussed the treatment of information exchange within the context of a 

price fixing agreement/concerted practice. This context presumably contributed to what may be seen as a 

harsh formalistic approach to information exchange. See in particular the statement in para 41 which 

states that ‘an exchange of information which is capable of removing uncertainties between participants 

as regards the timing, extent and details of the modifications to be adopted by the undertaking concerned 

must be regarded as pursuing an anti-competitive object.’ This overreaching statement creates uncertainty 

as to treatment of information exchange. In this respect it would have been prudent to unbundle the legal 

treatment of information exchange and the price fixing activity.

P a g e | 24 

On this point note AG Kokkot opinion which makes reference to Case C-238/05 Asnef-Equifax [2006] 

ECR I-11125 and states that ‘Not every exchange of information between competitors necessarily has as 

its object the prevention, restriction or distortion of competition.’ (para 37) In that case the Court held 

that the credit information exchange systems did not have, by their very nature, the object of restricting 

competition. 

Van den Bergh Foods Ltd v Commission 

Case T-65/98 R 

General Court, [2003] ECR II-4653, [2004] 4 CMLR 1 

Facts 

Vertical Agreements 

Single Branding 

Cabinet Exclusivity 

Van den Bergh Foods (formerly HB Ice Cream), supplied ice-cream retailers with freezer cabinets free of 

charge or at a nominal rent, provided that they were used exclusively for HB ice creams. The Commission 

found HB's exclusive cabinet distribution agreements incompatible with Articles 101 and 102 TFEU. HB 

applied for the annulment of the Commission Decision arguing that freezer-cabinet exclusivity was not to 

be regarded as outlet exclusivity since retailers were entitled to terminate the contract with HB or to 

install other freezers not belonging to HB. According to HB, the retailers’ freedom of choice contradicted 

any conclusion that the agreements foreclosed the market. Additionally HB challenged the Commission's 

finding that 40per cent of sales outlets in Ireland were de facto tied to HB by the exclusivity clause. The 

Application was dismissed. 

Held 

The cabinet exclusivity clause was not, in formal terms, an exclusive purchasing obligation whose object 

was to restrict competition. The Commission was therefore required to prove that the effect of such a 

clause would be to lead to a sufficiently high degree of foreclosure as to constitute an infringement of 

Article 101(1) TFEU. (para 80). Such an inquiry would rely on the specific economic context in which the 

agreements operated. (para 84) 

The nature of the product market, the limited space in outlets and the popularity of HB’s product range 

would have led retailers bound by the agreement to stock HB ice cream and to refrain from stocking a 

second range of impulse ice cream. The cabinet exclusivity clause would have motivated rational retailers 

in small outlets to favour HB’s products over products of other ice-cream manufacturers, regardless of 

their popularity on the market. (para 97) 

Despite the fact that it was theoretically possible for retailers who only had an HB freezer cabinet to sell 

the ice creams of other manufacturers, the practical effect of HB's network of distribution agreements 

and exclusivity clause was to restrict the commercial freedom of retailers to choose the products they 

wished to sell. (paras 99, 101) 

The retailers’ right to terminate their distribution agreements with HB at any time was not often exercised 

and did not operate de facto to reduce the degree of foreclosure of the relevant market. (para 105) 

Although freezer cabinet exclusivity may be a standard practice in the market and is part of an agreement 

concluded in the interests of both the retailers and HB, it constituted in the present market conditions an 

abuse when engaged by a dominant undertaking. (paras 159, 160) 

Comment 

The market in this case displays unique characteristics. The cost of freezer cabinets, cost of maintenance 

and cost of space in outlets, would lead a rational retailer to favour the dominant undertaking over 

competitors. Optimal allocation of space in small outlets would make it unprofitable to stock additional 

brands in a second freezer unless the profit generated is greater than the potential profit generated from 

using this space for displaying other goods. These unique characteristics created a strong disincentive for 

©Ariel Ezrachi, December 2012


P a g e | 25 

retailers to allow a new competitor into the outlet either instead of HB freezers or in addition to them. In 

other words, the retailers’ legal right to terminate an agreement was of no consequence as they lacked the 

incentive to do so. Subsequently, freezer exclusivity transformed into outlet exclusivity in the 

circumstances of this case. 

The Vertical Guidelines, (paras 129-50) outline the possible anticompetitive effects of non-compete 

obligations and the variables relevant in the assessment of such agreements under Article 101 TFEU. 

Non-compete obligations (single branding agreements) are exempted under the Vertical Block Exemption 

when (1) the market share held by the supplier does not exceed 30 per cent of the relevant market on 

which it sells the contract goods or services, and (2) the market share held by the buyer does not exceed 

30 per cent of the relevant market on which it purchases the contract goods or services, and (3) subject to 

a limitation in time of five years for the non-compete obligation. 

Konkurrensverket v TeliaSonera Sverige AB 

Case C-52/09 



The goals of Article 102 TFEU 

Abuse 

‘…Article 3(3) TEU states that the European Union is to establish an internal market, which, in 

accordance with Protocol No 27 on the internal market and competition, annexed to the Treaty of 

Lisbon (OJ 2010 C 83, p. 309), is to include a system ensuring that competition is not distorted. Article 

102 TFEU is one of the competition rules referred to in Article 3(1)(b) TFEU which are necessary for 

the functioning of that internal market.’ (paras 20, 21) 

‘The function of those rules is precisely to prevent competition from being distorted to the detriment of 

the public interest, individual undertakings and consumers, thereby ensuring the well-being of the 

European Union (see, to that effect, Case C-94/00 Roquette Frères [2002] ECR I-9011, paragraph 42).’ 

(para 22) 

‘In that context, the dominant position referred to in Article 102 TFEU relates to a position of economic 

strength enjoyed by an undertaking which enables it to prevent effective competition being maintained 

on the relevant market by affording it the power to behave to an appreciable extent independently of its 

competitors, its customers and ultimately of consumers (Case 85/76 Hoffmann-La Roche v Commission 

[1979] ECR 461, paragraph 38, and Case C-280/08 P Deutsche Telekom v Commission [2010] ECR I-0000, 

paragraph 170).’ (para 23) 

‘Accordingly, Article 102 TFEU must be interpreted as referring not only to practices which may cause 

damage to consumers directly… but also to those which are detrimental to them through their impact on 

competition. Whilst Article 102 TFEU does not prohibit an undertaking from acquiring, on its own 

merits, the dominant position in a market, and while, a fortiori, a finding that an undertaking has a 

dominant position is not in itself a ground of criticism of the undertaking concerned,… it remains the 

case that, in accordance with settled case-law, an undertaking which holds a dominant position has a 

special responsibility not to allow its conduct to impair genuine undistorted competition in the internal 

market...’ (para 24) 

Sot. Lélos kai Sia and others v GlaxoSmithKline AEVE 

Joined cases C-468/06 to C-478/06 

Court of Justice, [2008] ECR I-7139 


The goals of Article 102 TFEU 

Abuse 

In light of the Treaty objectives ‘there can be no escape from the prohibition laid down in [Article 102 

TFEU] for the practices of an undertaking in a dominant position which are aimed at avoiding all parallel 

exports from a Member State to other Member States, practices which, by partitioning the national


P a g e | 26 

markets, neutralise the benefits of effective competition in terms of the supply and the prices that those 

exports would obtain for final consumers in the other Member States.’ (para 66) 

‘Furthermore, in the light of the Treaty objectives to protect consumers by means of undistorted 

competition and the integration of national markets, the [Union] rules on competition are also incapable 

of being interpreted in such a way that, in order to defend its own commercial interests, the only choice 

left for a pharmaceuticals company in a dominant position is not to place its medicines on the market at 

all in a Member State where the prices of those products are set at a relatively low level.’ (para 68) 

Tomra Systems and Others v Commission 

Case T-155/06 

General Court, [2011] 4 CMLR 7 

Facts 


Abuse 

Rebates 

Tomra group was active in the market for reverse vending machines. These machines are used in 

supermarkets and outlets to collect used drinks containers in return for a deposit. The Commission found 

Tomra to abuse its dominant position in the market for reverse vending machines. The abuse consisted 

of a system of exclusivity agreements, quantity commitments and loyalty-inducing discounts. The 

Commission found these activities foreclosed the market to competition. Subsequently, the Commission 

imposed a €24 million fine on Tomra for abusing its dominant position (Prokent/Tomra COMP/E- 

1/38.113). In its decision the Commission noted that in order to establish an abuse under Article 102 

TFEU it is sufficient to show that the conduct in question tends to restrict competition. Nonetheless, the 

Commission completed its analysis in this case by considering the likely effects of Tomra’s practices on 

the market.’ (para 332) 

One of the contentious issues in this case was the actual suction effect generated by Tomra’s discounts 

scheme. Tomra’s economic analysis was aimed at showing that only less than a third of the rebate 

schemes referred to by the Commission could be considered exclusionary. It argued that the majority of 

rebates had no foreclosure effects and are thus permissible. The Commission rejected Tomra’s ex-post 

economic model. It argued that the ex post empirical evidence ‘cannot be considered meaningful, because 

it relates to actual as opposed to expected demand.’ It rejected Tomra’s claim that its rebate threshold 

was set below the level of demand and thus has no foreclosure effect. The Commission was of the 

opinion that Tomra’s economic model ‘requires irrationality on the incumbents side... it is clear that the 

incumbent is better off setting the threshold at expected demand.’ Subsequently, if the scheme satisfies 

customers demand, it is expected to produce a suction effect. (paras 373, 375, 364-90) Tomra brought an 

action for the annulment of the decision. Action dismissed by the General Court. Tomra appealed to the 

Court of Justice, appeal pending (C-549/10). 

Held 

Tomra claimed that contrary to the Commission’s view, it was not in a position to estimate or predict the 

customer requirements accurately and subsequently set a loyalty rebate in place. As evidence, it notes that 

actual purchases were consistently higher than contracted quantities. The contested decision, however, 

rests on the fact that the applicants were able to individualise this type of agreement by knowing what 

each customer’s requirements were. While demand in the market was at times irregular, the Court accepts 

the Commission’s view that demand was readily foreseeable. (paras 68-87) 

‘... A loyalty rebate, which is granted in return for an undertaking by the customer to obtain his stock 

exclusively or almost exclusively from an undertaking in a dominant position, is contrary to [Article 102 

TFEU]. Such a rebate is designed through the grant of financial advantage, to prevent customers from 

obtaining their supplies from competing producers (Joined Cases 40/73 to 48/73, 50/73, 54/73 to 

56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraph 518, 

and Michelin II, paragraph 56).’ (para 210)


P a g e | 27 

‘In determining whether a quantity rebate system is abusive, it will be necessary to consider all the 

circumstances, particularly the criteria and rules governing the grant of the rebate, and to investigate 

whether, in providing an advantage not based on any economic service justifying it, the rebates tend to 

remove or restrict the buyer’s freedom to choose his sources of supply, to bar competitors from access to 

the market, to apply dissimilar conditions to equivalent transactions with other trading parties or to 

strengthen the dominant position by distorting competition (Michelin II, paragraph 60).’ (para 214) 

‘The Commission, even though the case-law does not require it, also analysed, in the light of market 

conditions, the actual effects of the applicants’ practices. Tomra did not put forward any objective 

justification for its actions. (paras 219-225) 

Tomra argues that even if the agreements in question might have had foreclosure effects, such effect 

would apply to existing customers, but competitors would remain free to seek the business of other 

undertakings. Accordingly, it argues that a competitor could have profitably remained on the market by 

serving only the contestable part of the market. This argument cannot be accepted. ‘The foreclosure by a 

dominant undertaking of a substantial part of the market cannot be justified by showing that the 

contestable part of the market is still sufficient to accommodate a limited number of competitors. First, 

the customers on the foreclosed part of the market should have the opportunity to benefit from whatever 

degree of competition is possible on the market and competitors should be able to compete on the merits 

for the entire market and not just for a part of it. Second, it is not the role of the dominant undertaking 

to dictate how many viable competitors will be allowed to compete for the remaining contestable portion 

of demand.’ (paras 231-242) 

Tomra argues that competitors would have been able to earn positive revenues from their sales and that 

where retroactive rebates lead to positive prices, it cannot be presumed that they will necessarily be 

capable of producing exclusionary effects. Such an approach, according to Tomra, would effectively lead 

to a per se prohibition of retroactive rebates. That argument is based on an incorrect premiss. Contrary 

to the Tomra’s contention, the fact that the retroactive rebate schemes oblige competitors to ask negative 

prices from customers benefiting from rebates, cannot be regarded as one of the fundamental bases of 

the contested decision in showing that retroactive rebate schemes are capable of anti-competitive effects. 

(para 247-260) 

It is difficult to concur with Tomra’s ‘argument that a competitor may offset the lower prices that it is 

obliged to charge a customer for units below the threshold by selling additional units to the same 

customer (above the threshold). In fact, that customer’s remaining demand is at best limited, so the 

competitor’s average price will remain structurally unattractive.’ (para 270) 

The contested decision clearly states that although it is sufficient to show that the rebates in question 

tended to restrict competition the Commission considered, in addition, the likely effects of the Tomra’ 

practices. ‘It is thus clear that the Commission did not attempt to base its finding of an infringement of 

[Article 102 TFEU] on that consideration of the actual effects of the applicants’ practices on each of the 

national markets examined but that it merely complemented its finding of infringement with a brief 

examination of the likely effects of those practices.’ It is therefore not necessary to consider whether the 

evidence adduced by the Commission demonstrated actual elimination of competition. (paras 277-290) 

Comment 

The General Court reaffirmed the formalistic approach manifested in the case law and confirmed that the 

Commission was not required to engage in the examination of actual effects. The Commission’s analysis 

of actual effects only complemented the analysis of whether the rebates ‘tend to restrict competition’. 

Subsequently, even if the Commission erred in the analysis of actual effects, that would not undermine 

the legality of the decision. In essence, the Court’s approach reaffirms the lower form-based threshold of 

abuse and refrains from endorsing the Commission’s novel approach which is outlined in the Guidance 

Paper.

P a g e | 28 

This form-based threshold is lower than the self imposed, ‘actual effect’ threshold used by the 

Commission and advocated in the Guidance Paper. The implication of the General Court’s approach is 

that an appeal on a Commission’s finding of ‘actual effect’ and the ability of an ‘as efficient competitor’ to 

operate on the market, will not succeed when the Commission correctly established that the conduct is 

‘capable of having such effect’. It seems that the Court might have further lowered the threshold for 

abuse by referring in para 241 to the anticompetitive nature of a restriction on the share of the market 

available to competitors. 

Note AG Mazák opinion on appeal to the Court of Justice (appeal pending) who supported the 

Commission’s effects based analysis and commented that ‘Reference to negative (anti-competitive) effects 

should clearly not be mechanical. The (likely) existence of such exclusionary effects in a particular case 

should not be merely presumed, it should be assessed and demonstrated.’ The AG recommended that the 

Court of Justice dismiss the appeal. (para 44, AG opinion, Case C-549/10 P) 

Deutsche Telekom AG v Commission 

Case C-280/08 P 


Facts 


Abuse 

Margin Squeeze 

The Commission found Deutsche Telekom AG (‘DT’) to dominate the German markets of broadband 

access to local fixed networks and to abuse this position by charging its competitors more for unbundled 

access at wholesale level than it charged its subscribers for access at the retail level. This constituted a 

margin squeeze as the charges to be paid to DT for wholesale access, were so expensive that competitors 

were forced to charge their end-users prices higher than the prices DT charges its own end-users for 

similar services. In order to establish the existence of a margin squeeze, the Commission compared 

between wholesale and retail access services. In order to achieve a coherent comparison, it used a 

weighted approach taking into account the numbers of DT's retail customers for the different access 

services at retail level. DT brought an action for annulment to the General Court (Case T-271/03 Deutsche 

Telekom AG v Commission[2008] ECR II-477). The General Court dismissed the appeal making the 

following main points: 

Competition law and regulation - The fact that DT’s retail charges had to be approved by the German 

regulatory authority for telecommunications and post (RegTP) does not absolve it from responsibility 

under Article 102 TFEU. (para 107) That conclusion is not affected by the fact that RegTP checks the 

compatibility of its charges with Article 102 TFEU beforehand. (paras 108-20) In addition, DT had 

sufficient scope to fix its charges at a level that would have enabled it to end or reduce the margin 

squeeze at issue. (paras 120-151) 

The method used by the Commission to establish a margin squeeze - The abusive nature of DT's conduct is 

connected with the unfairness of the spread between its prices for wholesale access and its retail prices. 

Contrary to DT’s claim, in order to establish margin squeeze, the Commission is not required to 

demonstrate that DT's retail prices were, as such, abusive. (para 167) 

Effect on the market - An abuse is an objective concept. ‘Given that, until the entry of a first competitor on 

the market for retail access services, in 1998, the applicant had a monopoly on that retail market, the anticompetitive 

effect which the Commission is required to demonstrate relates to the possible barriers which 

the applicant's pricing practices could have created for the growth of competition in that market.’ (para 

235) ‘If [DT’s] retail prices are lower than its wholesale charges, or if the spread between the [DT's] 

wholesale and retail charges is insufficient to enable an equally efficient operator to cover its productspecific 

costs of supplying retail access services, a potential competitor who is just as efficient as [DT] 

would not be able to enter the retail access services market without suffering losses.’ (para 237) The fact 

that competition has developed less favourably in the other Member States does not show that DT's 

pricing practices had no anti-competitive effect in Germany. In addition, the state of competition should 


P a g e | 29 

be examined on the basis of the elements of fact and of law existing at the time when the measure was 

adopted. Subsequently information about current competition on the market is not relevant in the context 

of an action for annulment.(paras 243, 244) 

DT appealed. The Court of Justice dismissed the appeal and upheld the fine imposed by the Commission. 

Held 

Attribution of the margin squeeze to DT on the ground that it had the scope to adjust its retail prices. 

‘According to the case-law of the Court of Justice, it is only if anti-competitive conduct is required of 

undertakings by national legislation, or if the latter creates a legal framework which itself eliminates any 

possibility of competitive activity on their part, that [Articles 101 and 102 TFEU] do not apply. In such a 

situation, the restriction of competition is not attributable, as those provisions implicitly require, to the 

autonomous conduct of the undertakings. [Articles 101 and 102 TFEU] may apply, however, if it is 

found that the national legislation leaves open the possibility of competition which may be prevented, 

restricted or distorted by the autonomous conduct of undertakings (Joined Cases C-359/95 P and 

C-379/95 P Commission and France v Ladbroke Racing [1997] ECR I-6265, paragraphs 33 and 34 and the 

case-law cited).’ (para 80) 

‘If a national law merely encourages or makes it easier for undertakings to engage in autonomous anticompetitive 

conduct, those undertakings remain subject to [Articles 101 and 102 TFEU] (Joined Cases 

40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission 

[1975] ECR 1663, paragraphs 36 to 73, and CIF, paragraph 56). According to the case-law of the Court, 

dominant undertakings have a special responsibility not to allow their conduct to impair genuine 

undistorted competition on the common market (Case 322/81 Nederlandsche Banden-Industrie-Michelin v 

Commission [1983] ECR 3461, paragraph 57).’ (pars 82, 83) 

Since DT had scope to adjust its retail prices, the Court was entitled to attributable the margin squeeze to 

DT 

The margin squeeze test 

Article 102 TFEU prohibits a dominant undertaking from adopting pricing practices which have an 

exclusionary effect on equally efficient actual or potential competitors. ‘The anti-competitive effect 

which the Commission is required to demonstrate, as regards pricing practices of a dominant undertaking 

resulting in a margin squeeze of its equally efficient competitors, relates to the possible barriers which the 

appellant’s pricing practices could have created for the growth of products on the retail market in enduser 

access services and, therefore, on the degree of competition in that market.... Such practice 

constitutes an abuse... if it has an exclusionary effect on competitors who are at least as efficient as the 

dominant undertaking itself by squeezing their margins and is capable of making market entry more 

difficult or impossible for those competitors, and thus of strengthening its dominant position on that 

market to the detriment of consumers’ interests.’ (paras 177, 252, 253) 

‘Admittedly, where a dominant undertaking actually implements a pricing practice resulting in a margin 

squeeze of its equally efficient competitors, with the purpose of driving them from the relevant market, 

the fact that the desired result is not ultimately achieved does not alter its categorisation as abuse within 

the meaning of Article 82 EC. However, in the absence of any effect on the competitive situation of 

competitors, a pricing practice such as that at issue cannot be classified as exclusionary if it does not 

make their market penetration any more difficult.’ (para 254) 

‘...the wholesale local loop access services provided by the appellant are indispensable to its competitors’ 

effective penetration of the retail markets for the provision of services to end-users, the General Court 

was entitled to hold... that a margin squeeze resulting from the spread between wholesale prices for local 

loop access services and retail prices for end-user access services, in principle, hinders the growth of 

competition in the retail markets in services to end-users, since a competitor who is as efficient as the 



P a g e | 30 

appellant cannot carry on his business in the retail market for end-user access services without incurring 

losses.’ (para 255) 

‘...the mere fact that the appellant would have to increase its retail prices for end-user access services in 

order to avoid the margin squeeze of its competitors who are as efficient as the appellant cannot in any 

way, in itself, render irrelevant the test which the General Court applied in the present case for the 

purpose of establishing an abuse under [Article 102 TFEU].’ (para 181) 

Comment 

The Court confirmed that margin squeeze forms a standalone abuse which stems from the unfairness of 

the spread between wholesale and retail prices. There is no need to establish that the retail prices are 

abusive. 

The judgments confirmed the possible application of EU competition law to a regulated market, when 

under the national regulation the dominant undertaking has a margin of commercial discretion in 

determining its action and in avoiding or ending the abuse on its own initiative. 

Contrast the ex-post application of EU competition law to a market which was subjected to ex-ante 

regulation, with the US Supreme Court non-interventionist approach as evident in Verizon Communications 

Inc v Law Offices of Curtis v. Trinko LLP 540 US 398 (2004) (Trinko). In the Trinko judgement, Justice Scalia 

held that ‘one factor of particular importance is the existence of a regulatory structure designed to deter 

and remedy anticompetitive harm. Where such a structure exists, the additional benefit to competition 

provided by antitrust enforcement will tend to be small, and it will be less plausible that the antitrust laws 

contemplate such additional scrutiny... The regulatory framework that exists in this case demonstrates 

how, in certain circumstances, regulation significantly diminishes the likelihood of major antitrust harm.... 

Against the slight benefits of antitrust intervention here, we must weigh a realistic assessment of its 

costs... Mistaken inferences and the resulting false condemnations “are especially costly, because they chill 

the very conduct the antitrust laws are designed to protect...” Even if the problem of false positives did 

not exist, conduct consisting of anticompetitive violations... may be, as we have concluded with respect to 

above-cost predatory pricing schemes, "beyond the practical ability of a judicial tribunal to control." 

Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U. S. 209, 223 (1993).’ 

On the analysis of margin squeeze, the Court of Justice confirmed that margin squeeze is established by 

reference to the fairness of the spread between wholesale access and retail prices and is not dependant on 

the possible abusive nature of the retail price. It thus rejected DT’s argument that the abusive nature of a 

margin squeeze can arise only from the abusive nature of retail prices. 

Contrast this view with the US Supreme Court judgement in Pacific Bell Telephone Co. v. linkLine 

Communications, Inc. 29 S. Ct. 1109 (2009). Chief Justice Roberts delivered the opinion of the Court and 

held that: ‘An upstream monopolist with no duty to deal is free to charge whatever wholesale price it 

would like; antitrust law does not forbid lawfully obtained monopolies from charging monopoly prices... 

If both the wholesale price and the retail price are independently lawful, there is no basis for imposing 

antitrust liability simply because a vertically integrated firm’s wholesale price happens to be greater than or 

equal to its retail price.’

Mannesmannröhren-Werke AG v EC Commission 

Case T-112/98 

General Court, [2001] ECR II-729, [2001] 5 CMLR 1 

Facts 


P a g e | 31 

Public Enforcement 

Right of Defence 

Self-incrimination 

The applicant Mannesmannröhren-Werke AG (MW) refused to reply to a request for information made 

by the Commission under Article 11 of Regulation 17/62. The request for information was made as part 

of an investigation relating to the applicant and other producers of steel tubes, in the course of which the 

Commission carried out inspections on the premises of the undertakings involved. The Commission 

rejected MW’s argument that it was not obliged to provide the information and adopted a decision 

imposing a fine on MW if it failed to provide the information. MW applied for annulment of the 

Commission’s decision. 

Held 

There is no absolute right to silence in competition proceedings. 

The Commission’s power of investigation during a preliminary investigation is limited insofar as it cannot 

undermine the right of defence. Such limitation does not give rise to an absolute right to silence, but to a 

partial right to silence to the extent that an undertaking would not be compelled to provide answers 

which might involve an admission of the existence of an infringement. (paras 59-69) 

MW was obliged to respond to questions of a purely factual nature and to provide the Commission with 

details of meetings between steel tube producers. MW was not obliged to respond to questions which did 

not concern exclusively factual information and might have compelled it to admit its participation in an 

unlawful agreement. (paras 70-3) 

Answering purely factual questions cannot be regarded as undermining the right of defence as the 

undertaking is free to put forward its own interpretation as to the meaning of the documents produced by 

it. (para 78) 

The contested decision was annulled in so far as it obliged MW to answer questions which might involve 

it in admitting that it was a party to an anticompetitive agreement. 

Comment 

Recital 23 of Regulation 1/2003 reasserts the above principle and states that when complying with a 

decision of the Commission requiring information ‘undertakings cannot be forced to admit that they have 

committed an infringement, but they are in any event obliged to answer factual questions and to provide 

documents, even if this information may be used to establish against them or against another undertaking 

the existence of an infringement’. 

The European Court of Human Rights recognised a right to remain silent in criminal cases (see additional 

discussion in Orkem (page 464 above)). Consequently, the use by National Competition Authorities of 

information gathered under the partial right to silence rule in Regulation 1/2003 would be limited in cases 

involving criminal proceedings. Note Recital 37 of Regulation 1/2003 which states that the Regulation 

should be interpreted and applied with due regard being given to fundamental rights and principles 

recognised in particular by the Charter of Fundamental Rights of the European Union.

Akzo Nobel Chemicals and Akcros Chemicals Ltd v Commission 

Cases C-550/07 P 


Facts 


P a g e | 32 


Legal Privilege 

In-house Counsel 

The Commission conducted an investigation into possible infringements of EU competition law by Akzo 

Nobel and Akcros Chemicals. During the investigation the Commission raided Akzo’s offices and 

obtained various documents in accordance with its investigation powers under Article 14(3), Regulation 

17/62. Akzo claimed that some of the documents were protected by professional privilege. Some of the 

documents included internal communications for the purpose of obtaining external legal advice on 

competition matters. These were placed in sealed envelopes titled ‘Set A’. Another group of documents 

classified as ‘Set B’ included email correspondences between Akzo’s in house counsel (titled ‘competition 

law coordinator’) who was a registered attorney at the Dutch bar, and the General Manager of Akcros Chemicals. 

The ‘Set B’ documents were not sealed in an envelope, as the Commission was of the opinion that they 

did not benefit from legal privilege. Akzo claimed that both sets of documents were protected by 

professional privilege. Following a Commission decision, in which it indicated that it intended to read the 

‘Set A’ documents the undertakings applied for interim measures seeking suspension of the operation of 

the decision. The president of the General Court granted a preliminary order requiring the Commission 

to deposit the ‘Set A’ documents at the registry of the General Court. Both the Commission and 

Akzo/Akcros appealed the president’s order. 

On appeal (Cases T-125/03 and 253/03) the General Court held that ‘In a significant number of cases, a 

mere cursory look by the Commission officials at the general layout, heading, title or other superficial 

features of the document will enable them to confirm the accuracy of the reasons invoked by the 

undertaking and to determine whether the document at issue was confidential, when deciding whether to 

put it aside. Nevertheless, on certain occasions, there would be a risk that, even with a cursory look at the 

document, in spite of the superficial nature of their examination, the Commission officials would gain 

access to information covered by legal professional privilege. That may be so, in particular, if the 

confidentiality of the document in question is not clear from external indications.’ (para 81) ‘An 

undertaking subject to an investigation under Article 14(3) of Regulation No 17 is entitled to refuse to 

allow the Commission officials to take even a cursory look at one or more specific documents which it 

claims to be covered by [legal professional privilege], provided that the undertaking considers that such a 

cursory look is impossible without revealing the content of those documents and that it gives the 

Commission officials appropriate reasons for its view.’ (para 82) ‘Where the Commission and the 

undertakings are not in agreement as to the confidential nature of the document, Commission officials 

may place a copy of the document in a sealed envelope and then remove it with a view to a subsequent 

resolution of the dispute. This procedure enables risks of a breach of legal professional privilege to be 

avoided while at the same time enabling the Commission to retain a certain control over the documents 

forming the subject-matter of the investigation…’ (paras 83) ‘the Court considers that the Commission 

forced the applicants to accept the cursory look at the disputed documents, even though… the applicants' 

representatives claimed… that such an examination would require the contents of those documents to be 

disclosed… Accordingly, the Court concludes that the Commission infringed the procedure for 

protection under legal professional privilege in this regard.’ (para 95) 

In the present case, ‘the Set A documents do not by themselves constitute written communications with 

an independent lawyer or an internal note reporting the content of a communication with such a lawyer. 

Nor do the applicants submit that those documents were prepared in order to be sent physically to an 

independent lawyer….’ (para 118) Preparatory documents, even if they were not exchanged with a lawyer 

or were not created for the purpose of being sent physically to a lawyer, may none the less be covered by 

legal professional privilege, provided that they were drawn up exclusively for the purpose of seeking legal 

advice from a lawyer in exercise of the rights of the defence. The mere fact that a document has been 

discussed with a lawyer is not sufficient to give it such protection. (paras 120-24) With respect to the 

protection afforded to communications with in house lawyers, the Court of Justice in AM&S expressly 

held that the protection accorded to legal professional privilege under Union law, only applies to the

P a g e | 33 

extent that the lawyer is independent, that is to say, not bound to his client by a relationship of 

employment (paragraphs 21, 22 and 27 of the AM&S judgment). (para 166) 

Akzo appealed the General Court’s judgment to the Court of Justice. The Court dismissed the appeal as 

unfounded. In its judgment the Court considered the protection to communication with in-house lawyers. 

Held 

In AM & S Europe v Commission, the Court held that the confidentiality of written communications 

between lawyers and clients should be protected at Community level, subject to two cumulative 

conditions. [1] that the exchange with the lawyer must be connected to ‘the client’s rights of defence’ and, 

[2] that the exchange must emanate from ‘independent lawyers’, that is to say ‘lawyers who are not bound 

to the client by a relationship of employment’. (paras 40, 41) 

‘As to the second condition, the Court observed... that the requirement as to the position and status as an 

independent lawyer, which must be fulfilled by the legal adviser from whom the written communications 

which may be protected emanate, is based on a conception of the lawyer’s role as collaborating in the 

administration of justice and as being required to provide, in full independence and in the overriding 

interests of that cause, such legal assistance as the client needs. The counterpart to that protection lies in 

the rules of professional ethics and discipline which are laid down and enforced in the general interest....’ 

(para 42) 

‘As the Advocate General observed,... the concept of the independence of lawyers is determined not only 

positively, that is by reference to professional ethical obligations, but also negatively, by the absence of an 

employment relationship. An in-house lawyer, despite his enrolment with a Bar or Law Society... does not 

enjoy the same degree of independence from his employer as a lawyer working in an external law firm 

does in relation to his client. Consequently, an in-house lawyer is less able to deal effectively with any 

conflicts between his professional obligations and the aims of his client.’ (para 45) 

Notwithstanding the professional regime applicable to the in-house lawyer, he cannot be treated in the 

same way as an external lawyer, because being an employee, by its very nature, does not allow him to 

ignore the commercial strategies of his employer, and thereby affects his ability to exercise professional 

independence. An in-house lawyer therefore does not enjoy a level of professional independence equal to 

that of external lawyers. Being in a fundamentally different position from external lawyers, the General 

Court rightly held that there was no breach of the principle of equal treatment in this case. (paras 47- 59) 

In accordance with the principle of national procedural autonomy, in the absence of European Union 

rules governing the matter, it is for the domestic legal system of each Member State to lay down the 

detailed procedural rules governing actions for safeguarding individuals’ rights. However, in the present 

case, the Court is called on to decide on the legality of a decision taken by the European Commission. As 

the Advocate General stated in her Opinion, national law is applicable in the context of investigations 

conducted by the European Commission only in so far as the authorities of the Member States lend their 

assistance. Accordingly, neither the principle of national procedural autonomy nor the principle of 

conferred powers may be invoked against the powers enjoyed by the Commission in the area in question. 

(pars 113-120) 

Comment 

The Court of Justice upheld the General Court’s finding that under European Union law, legal 

professional privilege does not extend to communications with in-house lawyers. Note the position in the 

UK where greater protection is afforded to in-house lawyers. In Alfred Crompton Amusement Machines Ltd. v. 

Customs and Excise Commissioners (No. 2) [1972] 2 WLR. 835, the High Court held that in-house lawyers ‘are 

regarded by the law as in every respect in the same position as those who practice on their own account. 

The only difference is that they act for one client only, and not for several clients. They must uphold the 

same standards of honour and of etiquette. They are subject to the same duties to their client and to the 

court…’ 


Coca-Cola 

COMP/A.39.116/B2 

European Commission, [2005] OJ L 253/21 


P a g e | 34 


Commitments 

Article 9, Regulation 1/2003 

The commitment decision was adopted pursuant to Article 9(1) of Council Regulation 1/2003. The 

procedure concerned the conduct of the Coca-Cola Company and its three major bottlers in the supply of 

carbonated soft drinks. In a preliminary assessment, the Commission expressed concerns that practices by 

the undertakings, including exclusivity-related requirements, growth and target rebates, infringed Article 

102 TFEU. In order to resolve these concerns the undertakings offered a range of commitments which 

were formally accepted by the Commission and made binding until 31 December 2010. The Commission 

could impose a fine amounting to 10% of Coca-Cola’s total worldwide turnover if Coca-Cola breaks its 

commitments. In the commitments the undertakings agreed, among other things, to refrain from 

exclusivity arrangements, target or growth rebates and tying. In addition Coca Cola committed that where 

it provides a free cooler to a retailer and there is no other chilled beverage capacity in the outlet to which 

the consumer has a direct access, it will free at least 20% of the space in the cooler provided by Coca- 

Cola for the display and sales of competing products. 

Musique Diffusion Francaise SA v Commission 

Joined Cases 100/80 to 103/80 

Court of Justice, [1983] ECR 1825, [1983] 3 CMLR 221 

Public 

Enforcement 

Fines 

‘…the Commission's power to impose fines on undertakings which, intentionally or negligently, commit 

an infringement of the provisions of [Articles 101(1) or 102 TFEU] is one of the means conferred on the 

Commission in order to enable it to carry out the task of supervision conferred on it by [Union] law. That 

task certainly includes the duty to investigate and punish individual infringements, but it also encompasses 

the duty to pursue a general policy designed to apply, in competition matters, the principles laid down by 

the Treaty and to guide the conduct of undertakings in the light of those principles.’ (para 105) 

‘…in assessing the gravity of an infringement for the purpose of fixing the amount of the fine, the 

Commission must take into consideration not only the particular circumstances of the case but also the 

context in which the infringement occurs and must ensure that its action has the necessary deterrent 

effect, especially as regards those types of infringement which are particularly harmful to the attainment 

of the objectives of the [Union].’ (para 106) 

‘From that point of view, the Commission was right to classify as very serious infringements; prohibitions 

on exports and imports seeking artificially to maintain price differences between the markets of the 

various Member States. Such prohibitions jeopardize the freedom of intra-[Union] trade, which is a 

fundamental principle of the Treaty, and they prevent the attainment of one of its objectives, namely the 

creation of a single market.’ (para 107) 

‘It was also open to the Commission to have regard to the fact that practices of this nature, although they 

were established as being unlawful at the outset of [Union] competition policy, are still relatively frequent 

on account of the profit that certain of the undertakings concerned are able to derive from them and, 

consequently, it was open to the Commission to consider that it was appropriate to raise the level of fines 

so as to reinforce their deterrent effect.’ (para 108) 

‘For the same reasons, the fact that the Commission, in the past, imposed fines of a certain level for 

certain types of infringement does not mean that it is estopped from raising that level within the limits 

indicated in Regulation no 17 if that is necessary to ensure the implementation of [Union] competition 

policy. On the contrary, the proper application of the [Union] competition rules requires that the 

Commission may at any time adjust the level of fines to the needs of that policy.’ (para 109)

Marine Hoses 

Case COMP/39406 

European Commission, [2009] OJ C 168/6 

Facts 


P a g e | 35 


Limitation Periods 

The Commission fined a number of companies for their participation in cartel activity in the market for 

marine hoses. The activity included, among other things, the fixing of prices, quotas, and sales conditions, 

market sharing, allocation of tenders, and the exchange of sensitive information. The coordination in 

question lasted, with different levels of intensity, over a long period of time, from 1986 to 2007. The 

Commission considered it to form a single and continuous infringement of Article 101 TFEU. 

Held 

‘A complex cartel may properly be viewed as a “single and continuous infringement” for the time frame 

in which it existed. The Court of First Instance points out, inter alia, in the Cement cartel case that the 

concept of “single agreement” or “single infringement” presupposes a complex of practices adopted by 

various parties in pursuit of a single anti-competitive economic aim. The agreement may well be varied 

from time to time, or its mechanisms adapted or strengthened to take account of new developments. The 

validity of this assessment is not affected by the possibility that one or more elements of a series of 

actions or of a continuous course of conduct could individually and in themselves constitute a violation 

of [Article 101 TFEU].’ (para 282) 

‘It would be artificial to split up such continuous conduct, characterised by a single purpose, by treating it 

as consisting of several separate infringements, when what was involved was a single infringement which 

manifested itself in a series of anti-competitive activities throughout the period of operation of the cartel. 

According to the case law, this also applies if an infringement, although single and continuous, was 

disrupted for a brief period if the cartel was then resumed fully. That serves to reconcile the concept of a 

single and continuous infringement with the requirements arising from the need for precise determination 

of the duration of the infringement and, therefore, insofar as the calculation of the amount of the fine 

depends among other things on that latter criterion, from the principle of proportionality of the fine. 

Similar consequences apply if there is a period for which there is evidence of sporadic and low intensity 

contacts (e.g. exchanges of information, attempts to coordinate behaviour or strengthen the cartel) 

between participants which nonetheless constitute a sufficient basis to find that the cartel did not stop 

functioning at any point during this brief period, but at most changed its usual form. Finally, a single 

infringement may in any event be found and sanctioned if there is a proven break in the participation of 

one or more undertakings in the cartel which does not allow the conclusion that the cartel continued 

between two different manifestations of it. Even if the break were to be of a longer duration, but the 

participant or participants in question resumed the same cartel after the break, then it would still be 

possible to find that there had been a single infringement and to impose a sanction also as regards the 

period prior to the break, without any limitation period being applicable, pursuant to Article 25(2) of 

Regulation (EC) No 1/2003 and Article 1(2) of Council Regulation (EEC) No 2988/74 of 26 November 

1974 concerning limitation periods in proceedings and the enforcement of sanctions under the rules of 

the European Economic Community relating to transport and competition which applied previously and 

had the same content. The limitation period would start to run on the day on which the last manifestation 

of such a single and repeated infringement ceased, and in such a case the concept of repeated 

infringement would be applicable. Since the participants rejoin the same cartel, a single infringement is 

committed and a single fine applied for the entire duration excluding the period of the break...’ (para 283) 

‘Although a cartel is a joint enterprise, each participant in the arrangement may play its own particular 

role. One or more may exercise a dominant role as ringleader(s). Internal conflicts and rivalries, or even 

cheating may occur, but will not however prevent the arrangement from constituting an 

agreement/concerted practice for the purposes of [Article 101 TFEU] where there is a single common 

and continuing objective.’ (para 284)


P a g e | 36 

An infringement of Article 101 TFEU may result not only from an isolated act but also from a series of 

acts or from continuous conduct. Although Article 101 TFEU does not refer explicitly to the concept of 

single and continuous infringement, an undertaking may be held responsible for an overall cartel even if it 

participated directly only in one or some of the constituent elements of that cartel. (para 286, 287) 

Comment 

In para 283 the Commission noted that when there is a break in a cartel activity it is possible to view the 

recommencement of the activity at a later stage as part of the same single infringement. It subsequently 

concluded that ‘even if the break were to be of a longer duration, but the participant or participants in 

question resumed the same cartel after the break, then it would still be possible to find that there had 

been a single infringement and to impose a sanction also as regards the period prior to the break, without 

any limitation period being applicable, pursuant to Article 25(2) of Regulation (EC) No 1/2003...’ 

Article 25(2) of Regulation 1/2003 stipulates that in the calculation of limitation periods for the 

imposition of penalties ‘time shall begin to run on the day on which the infringement is committed. 

However, in the case of continuing or repeated infringements, time shall begin to run on the day on 

which the infringement ceases.’ 

The Commission’s interpretation of Article 25(2) Regulation 1/2003 raises interesting questions as to the 

notion of ‘continuing or repeated infringements’ and the calculation of limitation period. It seems that in 

its decision the Commission has stretched the notion of ‘repeated infringement’. It considered the 

rejoining of the cartel activity at a later stage would ‘revive’ prior periods of cartel activities which ended 

and bring them under the concept of repeated infringement. According to the Commission, this will be 

the case notwithstanding the length of the break between the activities, as long as the undertakings rejoin 

the same activity at a later stage. This reading of Article 25(2) undermines the rationale behind time 

barring as it provides the Commission with unlimited power to fine (revived) activities. 

In its decision the Commission made reference to the General Court judgement in Case T-279/02 

Degussa v Commission [2006] ECR II-897, in which the General Court noted with respect to suspension of 

a cartel that ‘...Suspension of a cartel can be acknowledged only where it is established that a given 

infringement, although single and continuous, was disrupted for a brief period in such a way as to 

preclude inclusion of that period in the calculation of the total duration of the infringement, assuming, of 

course, that the cartel was then resumed fully. That method thus serves to reconcile the concept of a 

single continuous infringement with the requirements arising from the need for precise determination of 

the duration of the infringement and, therefore, in so far as the calculation of the amount of the fine 

depends inter alia on the latter criterion, from the principle of proportionality of the fine.’ (para 178) 

The Commission also made reference in its decision to two of its own decisions in which it considered 

‘repeated infringement’. These are: Commission Decision 2007/691/EC of 20 September 2006 in Case 

COMP/F/38.121 – Fittings, [2007] OJ L 283, pp. 63-8 (Appealed to the General Court - Case T-379/06, 

and currently on appeal to the Court of Justice - Case C-264/11 P); Commission Decision 83/546/EEC 

of 17 October 1983 in Case COMP/IV/30.064 - Cast iron and steel rolls, [1983] OJ L 317, pp. 1-18, recitals 

67-8. 

The Commission decision was appealed in case T-147/09 Trelleborg Industrie v Commission [2009] OJ C 

153/41. On appeal, Trelleborg Industrie SAS argued that the Commission’s power to impose fines for 

any period before 21 June 1999 is time barred under Article 25(1) of Regulation 1/2003, that the 

Commission has no legitimate interest in making a declaratory finding of infringement for the first period 

which had come to an end in May 1997 and that the Commission has unlawfully discriminated against it 

in treating it differently from another addressee as regards liability for a corporate predecessor and has 

breached the right to be heard and the obligation to give reasons. Appeal pending.

Remia BV and others v Commission 

Case 42/84 

Court of Justice, [1985] ECR 2545 


P a g e | 37 


Complex economic analysis 

‘Although as a general rule the court undertakes a comprehensive review of the question whether or not 

the conditions for the application of [Article 101(1) TFEU] are met, it is clear that in determining the 

permissible duration of a non-competition clause incorporated in an agreement for the transfer of an 

undertaking the commission has to appraise complex economic matters. the court must therefore limit its 

review of such an appraisal to verifying whether the relevant procedural rules have been complied with, 

whether the statement of the reasons for the decision is adequate , whether the facts have been accurately 

stated and whether there has been any manifest error of appraisal or a misuse of powers.’ (para 34) 

Microsoft Corp v Commission 

Case T-201/04 

General Court, [2007] ECR II-1491 


Complex technical appraisals 

‘The Court observes that it follows from consistent case-law that, although as a general rule the [Union] 

Courts undertake a comprehensive review of the question as to whether or not the conditions for the 

application of the competition rules are met, their review of complex economic appraisals made by the 

Commission is necessarily limited to checking whether the relevant rules on procedure and on stating 

reasons have been complied with, whether the facts have been accurately stated and whether there has 

been any manifest error of assessment or a misuse of powers (Case T-65/96 Kish Glass v Commission 

[2000] ECR II-1885, paragraph 64, upheld on appeal by order of the Court of Justice in Case C-241/00 P 

Kish Glass v Commission [2001] ECR I-7759; see also, to that effect, with respect to [Article 101 TFEU], 

Case 42/84 Remia and Others v Commission [1985] ECR 2545, paragraph 34, and Joined Cases 142/84 and 

156/84 BAT and Reynolds v Commission [1987] ECR 4487, paragraph 62).’ (para 87) 

‘Likewise, in so far as the Commission’s decision is the result of complex technical appraisals, those 

appraisals are in principle subject to only limited review by the Court, which means that the [Union] 

Courts cannot substitute their own assessment of matters of fact for the Commission’s (see, as regards a 

decision adopted following complex appraisals in the medico-pharmacological sphere, order of the 

President of the Court of Justice in Case C-459/00 P(R) Commission v Trenker [2001] ECR I-2823, 

paragraphs 82 and 83; see also, to that effect, Case C-120/97 Upjohn [1999] ECR I-223, paragraph 34 and 

the case-law cited; Case T-179/00 A. Menarini v Commission [2002] ECR II-2879, paragraphs 44 and 45; 

and Case T-13/99 Pfizer Animal Health v Council [2002] ECR II-3305, paragraph 323).’ (para 88) 

Aalborg Portland and others v Commission 

Joined cases C-204, 5, 11, 13, 17, 19/00 

Court of Justice, [2004] ECR I-123, [2005] 4 CMLR 4 

Facts 

Private Enforcement 

Burden of Proof 

An appeal against the General Court judgment in Cimenteries CBR and others v Commission in which the 

General Court confirmed parts of the infringements found in Commission Decision Cases IV/33.126 and 

33.322 (Cement). In its decision the Commission found a large number of undertakings and associations 

active in the European cement market to infringe Article 101 TFEU by entering into anticompetitive 

agreements and concerted practices. On appeal, the Court of Justice referred to, among other things, the 

burden of proof in competition cases: 

Held (on the establishment of the liability of the undertakings) 

According to Regulation 1/2003 on the implementation of the rules on competition laid down in Articles 

101 and 102 TFEU, ‘it should be for the party or the authority alleging an infringement of the 

competition rules to prove the existence thereof and it should be for the undertaking or association of


P a g e | 38 

undertakings invoking the benefit of a defence against a finding of an infringement to demonstrate that 

the conditions for applying such defence are satisfied, so that the authority will then have to resort to 

other evidence.’ (para 78) 

‘Although according to those principles the legal burden of proof is borne either by the Commission or 

by the undertaking or association concerned, the factual evidence on which a party relies may be of such a 

kind as to require the other party to provide an explanation or justification, failing which it is permissible 

to conclude that the burden of proof has been discharged.’ (para 79) 

‘According to settled case-law, it is sufficient for the Commission to show that the undertaking concerned 

participated in meetings at which anti-competitive agreements were concluded, without manifestly 

opposing them, to prove to the requisite standard that the undertaking participated in the cartel. Where 

participation in such meetings has been established, it is for that undertaking to put forward evidence to 

establish that its participation in those meetings was without any anti-competitive intention by 

demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit 

that was different from theirs (see Case C-199/92 P Huls v Commission [1999] ECR I-4287, paragraph 155, 

and Case C-49/92 P Commission v Anic [1999] ECR I-4125, paragraph 96).’ (para 81) 

‘The principles established in the case-law cited at paragraph 81 of this judgment also apply to 

participation in the implementation of a single agreement. In order to establish that an undertaking has 

participated in such an agreement, the Commission must show that the undertaking intended to 

contribute by its own conduct to the common objectives pursued by all the participants and that it was 

aware of the actual conduct planned or put into effect by other undertakings in pursuit of the same 

objectives or that it could reasonably have foreseen it and that it was prepared to take the risk (Commission 

v Anic, paragraph 87).’ (para 83) 

Comment 

The alleviation of the claimant’s evidentiary burden is justified when information asymmetry prevents the 

plaintiff from accessing information that is in the control of the defendant. 

In paragraph 79 the Court of Justice indicated that presenting factual evidence indicating an infringement 

of competition law may shift the burden to the defendant who will have to provide an explanation or 

justification to prove that the factual evidence does not constitute an infringement of competition law. 

Whereas the burden of proof in all European Member States is identical, the standard of proof in the 

different jurisdictions varies and may, for example, be based on ‘balance of probabilities’ or ‘winning the 

conviction of the court’.

EU Competition Law and Policy - compal

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