EU Competition Law and Policy - compal

More documents

Recommendations

Info

©Ariel Ezrachi, December 2012 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
©Ariel Ezrachi, December 2012 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.
Page 1 and 2: ©Ariel Ezrachi, December 2012 EU C
Page 3 and 4: Article 101 TFEU ©Ariel Ezrachi, D
Page 5 and 6: C-501/06 P etc GlaxoSmithKline Serv
Page 7 and 8: T-305/94 etc Limburgse Vinyl Maatsc
Page 9 and 10: ©Ariel Ezrachi, December 2012 P a
Page 13 and 14: 27/76 United Brands v Commission CO
Page 17 and 18: C-295/04 etc Vincenzo Manfredi v Ll
Page 19 and 20: Enforcement - The European Commissi
Page 21: Fines ©Ariel Ezrachi, December 201
Page 29 and 30: P a g e | 29 be examined on the bas
Page 31 and 32: Mannesmannröhren-Werke AG v EC Com
Page 33 and 34: P a g e | 33 extent that the lawyer
Page 35 and 36: Marine Hoses Case COMP/39406 Europe
Page 37 and 38: Remia BV and others v Commission Ca

EU Competition Law and Policy - compal

Create successful ePaper yourself

Delete template?

Save as template?