TABLE OF CONTENTS - Van Bael & Bellis

TABLE OF CONTENTS
PREFACE TO THE FIFTH EDITION
ABOUT THE AUTHORS
INTRODUCTION Developments since the Fourth Edition
1. INSTITUTIONS
§1.1. Summary of institutions
§1.2. The Commission
(1) General
(2) Role of the Commission
(3) Organization of the Commission
(4) Conclusion on the Commission
§1.3. The Council of Ministers
§1.4. The European Parliament
§1.5. The Advisory Committees
§1.6. The Economic and Social Committee
§1.7. The Court of First Instance
§1.8. The Court of Justice
§1.9. The European Ombudsman
§1.10. The competition authorities of the Member States
§1.11. National courts
§1.12. Transparency of information
2. BASIC PRINCIPLES
INTRODUCTION
ARTICLE 81: AGREEMENTS AND OTHER CONCERTED ACTIONS THAT ARE
RESTRICTIVE OF COMPETITION
§2.1. Introduction
§2.2. Text of the Article
ARTICLE 81(1): THE PROHIBITION OF AGREEMENTS AND OTHER CONCERTED
ACTION
§2.3. Conditions of prohibition
§2.4. The meaning of an ‘undertaking’
(1) The entity must be engaged in an economic activity
(2) The legal status of the entity does not matter
§2.5. Agreement or concerted action: requirement of more than one independent
undertaking
(1) Unilateral action excluded
(2) Employee relationships
(3) Agency relationship
(4) Related companies: the ‘economic entity’
(5) Companies related by succession
§2.6. Forms of prohibited conduct
(1) Agreement

(2) Decisions by associations of undertakings
(3) Concerted practices
§2.7. State compulsion
(1) State measures requiring anti-competitive conduct
(2) State measures restricting competition
§2.8. Restriction of competition
(1) Restriction by object or effect
(2) Appreciable restriction of competition
(3) Nature of competition which may be restricted
(4) Ancillary restraints falling outside the scope of Article 81(1)
(5) Does a rule of reason apply to Article 81(1)?
ARTICLE 81(2): THE NULLITY SANCTION
ARTICLE 81(3): EXEMPTION FROM THE PROHIBITION
§2.9. Introduction
§2.10. General principles for the application of Article 81(3)
(1) Exemption only applies for as long as the four relevant conditions are
fulfilled
(2) Hardcore restrictions
(3) Relationship between Article 81(3) and Article 82
§2.11. The four substantive conditions under Article 81(3)
§2.12. Efficiency gains: the contribution to production or distribution or to technical or
economic progress (first condition under Article 81(3))
(1) The efficiencies must create objective, compensatory benefits
(2) Evidentiary burden
(3) Different forms of efficiency gains
§2.13. Consumer welfare: the ‘fair share of the benefits’ criterion (second condition under
Article 81(3))
(1) General principles applying to the passing on of efficiencies
(2) Assessment of pass-on of cost efficiencies
(3) Assessment of pass-on of value in the case of new or improved products
§2.14. Indispensability of the restriction to achieve pro-competitive effects (third condition
under Article 81(3))
(1) Indispensability of the agreement
(2) Indispensability of individual restrictions
§2.15. Preserving effective competition: the ‘elimination of competition’ condition (fourth
condition under Article 81(3))
(1) Residual competition on the market
(2) Actual market conduct
(3) Past competitive interaction
(4) Differentiated products
(5) Potential competition and entry barriers
§2.16. Block exemptions
EFFECT ON TRADE BETWEEN MEMBER STATES
§2.17. Introduction
§2.18. The concept of ‘trade’
§2.19. Establishing an effect on trade
(1) Pattern of trade test
(2) Structural test
§2.20. Effect on trade must be appreciable
(1) General principle
(2) The ‘NAAT’ rule
§2.21. Application of the appreciability test to common types of agreements and abuses

(1) Agreements and abuses covering or implemented in several Member States
(2) Agreements and abuses covering a single Member State or only part of one
Member State
(3) Agreements and abuses involving imports and exports with undertakings
located in third countries or involving undertakings located in third countries
ARTICLE 82 AND THE CONCEPT OF DOMINANCE
§2.22. Scope of Article 82
§2.23. Definition of a ‘dominant position’
§2.24. Super-dominance
§2.25. Collective dominance
(1) Economic links or connecting factors
(2) Uniform or coordinated conduct
§2.26. Relevant criteria for evaluating dominance
(1) Market share
(2) Dependence
(3) Additional structural factors
(4) Additional behavioural factors
MARKET DEFINITION
§2.27. Introduction: the importance of market definition
§2.28. The Notice on Market Definition
(1) Relevant product market
(2) Relevant geographic market
§2.29. Process of defining the relevant market
§2.30. Application to specific markets
(1) Purchasing markets
(2) Technology markets
(3) Aftermarkets
THE INTERNATIONAL DIMENSION OF EC COMPETITION LAW
§2.31. Outline of this section
§2.32. Extraterritorial application of EC competition law
(1) Introduction
(2) The economic entity doctrine
(3) The effects doctrine
(4) The implementation doctrine
(5) Considerations of comity
(6) Conclusion
§2.33. Bilateral relations
(1) EU/US Cooperation
(2) EU/Canada Cooperation
(3) EU/Japan Cooperation
§2.34. Multilateral agreements
(1) International Competition Network
(2) Organization for Economic Cooperation and Development
(3) United Nations Conference on Trade and Development
(4) World Trade Organization
§2.35. The widening of the EU
(1) Agreements with the candidate countries (Turkey, Croatia and Macedonia)
and potential candidate countries (Albania, Bosnia, Serbia and Montenegro)
(2) European Economic Area
3. VERTICAL AGREEMENTS

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

(2) Referral policies and pass-over payments
(3) Differential pricing
(4) Product differentiation
(5) Warranty and after-sales service
(6) Monitoring systems
(7) Other schemes
LIMITED DISTRIBUTION
§3.21. Introduction
§3.22. Structure of analysis
§3.23. De Minimis Notice
§3.24. Vertical Agreements Block Exemption
§3.25. Exclusive distribution agreements
(1) The application of Article 81(1)
(2) The application of Article 81(3)
§3.26. Exclusive customer allocation agreements
(1) The application of Article 81(1)
(2) The application of Article 81(3)
§3.27. Exclusive supply agreements
(1) The application of Article 81(1)
(2) The application of Article 81(3)
SELECTIVE DISTRIBUTION
§3.28. Introduction
§3.29. Structure of analysis
§3.30. De Minimis Notice
§3.31. The Vertical Agreements Block Exemption
§3.32. The application of Article 81(1) – the case law
(1) The nature of the product
(2) Qualitative and proportionate criteria
(3) Quantitative criteria
(4) Non-discrimination – admission procedure
(5) The selective distribution system must enhance competition
(6) The structure of the market: cumulative effect
§3.33. The application of Article 81(3)
(1) Individual effect
(2) Cumulative effect
(3) Foreclosure of competition
(4) Exclusivity and territorial restrictions
FRANCHISING
§3.34. Introduction
§3.35. Structure of analysis
§3.36. Combination of franchising with specific forms of distribution
(1) Selective distribution
(2) Exclusive distribution
§3.37. De Minimis Notice
§3.38. The Vertical Agreements Block Exemption
§3.39. Case law and administrative practice concerning franchise agreements
(1) Pronuptia
(2) Administrative practice of the Commission
§3.40. Types of restrictions in franchising agreements
(1) Restrictions necessary to protect the franchisor’s know-how
(2) Restrictions protecting the identity and reputation of the franchise
(3) Location clauses and intra-franchise market sharing

§3.41. Application of Article 81(3) to franchising agreements
NON-COMPETE OBLIGATIONS, QUANTITY FORCING AND TYING
§3.42. Introduction
(1) Non-compete obligations
(2) Quantity forcing
(3) Tying
§3.43. Structure of analysis
§3.44. De Minimis Notice
§3.45. The Vertical Agreements Block Exemption
§3.46. Analysis of non-compete obligations under Article 81(1)
(1) Overview
(2) Establishing the existence of market-wide foreclosure effects
(3) Individual contribution to foreclosure effects
(4) Individual agreements in a network
(5) Objective justifications for non-compete obligations
(6) Use of premises or equipment owned by the supplier
(7) The practical difficulties of measuring foreclosure effects
§3.47. Application of Article 81(1) to tying obligations
§3.48. Application of Article 81(3) to non-compete obligations
(1) Non-compete obligations designed to prevent hold-up problems relating to
investments made by the supplier
(2) Non-compete obligations designed to prevent hold-up problems relating to
the transfer of know-how by the supplier
(3) Non-compete obligations designed to prevent free riding
(4) Non-compete obligations designed to correct capital market imperfections
(5) Use of non-compete obligations to obtain other logistical efficiencies
(6) Non-compete obligations combined with exclusive distribution
(7) Non-compete obligations combined with selective distribution
(8) Use of non-compete obligations in industrial supply agreements
§3.49. Specific issues related to tying
THE MOTOR VEHICLE BLOCK EXEMPTION
§3.50. Introduction
§3.51. Applicability of the Motor Vehicle Block Exemption
(1) Vertical agreements in the motor vehicle sector
(2) Market share threshold
(3) Intellectual property rights
(4) Agreements between competitors
(5) Agreements concluded by associations
§3.52. Structure of the Motor Vehicle Block Exemption
§3.53. De Minimis exception
§3.54. Choice of distribution system
(1) Exclusive distribution
(2) Selective distribution
(3) Co-existence of exclusive and selective distribution
§3.55. Non-compete obligations
(1) The definition of a non-compete obligation
(2) Indirect restrictions
(3) Repair activities
(4) Post term non-compete obligations
(5) Leasing activities
§3.56. Sales and purchase targets (including bonuses)
§3.57. Resale price maintenance
§3.58. Market integration

(1) Corresponding motor vehicles
(2) Obligation to provide repair and warranty work
(3) Sales to intermediaries
§3.59. Servicing and repairs within a vehicle manufacturer’s network
(1) Breaking the sales-service link
(2) Authorized after-sales network
(3) Subcontracting of service obligations
§3.60. The supply of spare parts
(1) Purchase restrictions
(2) Rights of manufacturers of original spare parts
(3) Spare parts resellers
§3.61. Independent repairers
(1) Technical information
(2) Supply of spare parts to independent repairers
(3) Routine maintenance
§3.62. General conditions on contractual protection
(1) Right of assignment
(2) Duration and termination of agreements
(3) Dispute resolution
§3.63. Withdrawal of the benefit of the exemption
§3.64. Evaluation of the impact of the Motor Vehicle Block Exemption – major changes
expected in 2010
4. HORIZONTAL AGREEMENTS: CARTELS
INTRODUCTION
APPLICATION OF ARTICLE 81(1) TO CARTELS
RESTRICTION OF COMPETITION THROUGH CARTELS
§4.1. Pricing practices
(1) Price-fixing agreements
(2) Price discrimination
(3) Ancillary agreements
(4) Parallel pricing behaviour
(5) Cartels and Article 82
§4.2. Market-sharing agreements
(1) Geographical market-sharing
(2) Limitation of production or sources of supply
(3) Limitation or control of investment
(4) Allocation of customers and/or products
(5) Product and geographic market sharing combined
(6) Bid rigging
§4.3. Collective Boycotts
§4.4. Exchange of Information
(1) Application of Article 81(1)
(2) Market structure
(3) Nature of the information exchanged
(4) Exchange of price information
(5) Exchange of information on production and sales
(6) Exchange of information on costs, investments and capacities
(7) Exchange of information on or between distributors
(8) Information exchange between financial institutions concerning the identity
and solvency of their customers
(9) Business-to-business electronic marketplaces

(10) UK Agricultural Tractor Registration Exchange
§4.5. Trade associations, trade fairs and exhibitions, exchanges and auctions
(1) Trade associations
(2) Trade fairs and exhibitions
(3) Exchanges
(4) Auctions
STATE COMPULSION AS A DEFENCE FOR CARTEL ACTIVITY
EXEMPTION OF CARTELS IN CRISIS SITUATIONS
§4.6. Introduction
§4.7. Assessment of crisis cartels
(1) Sectoral restructuring agreements
(2) Bilateral restructuring agreements
5. HORIZONTAL AGREEMENTS: JOINT VENTURES AND OTHER
COOPERATION AGREEMENTS
INTRODUCTION
§5.1. Overview
DEFINITION OF HORIZONTAL COOPERATION AGREEMENTS AND THE SCOPE OF
THIS CHAPTER
§5.2. Scope of the Horizontal Guidelines
§5.3. Definition of ‘horizontal’ cooperation agreements
§5.4. The standard of legality: Article 81 or the Merger Regulation
GENERAL OVERVIEW OF THE APPLICATION OF ARTICLE 81 AND THE
HORIZONTAL GUIDELINES TO JOINT VENTURES AND OTHER HORIZONTAL
COOPERATION AGREEMENTS
§5.5. Overview
§5.6. Application of Article 81(1) to joint ventures and other horizontal cooperation
agreements
(1) Appreciable restriction of competition
(2) Likely to affect trade between the Member States
§5.7. Exemption: application of Article 81(3) to horizontal cooperation agreements
(1) Economic benefits
(2) Fair share for consumers
(3) Indispensability
(4) No elimination of competition
INTRODUCTION TO THE REMAINDER OF THIS CHAPTER
§5.8. Scope
§5.9. Locating the applicable section of this chapter
§5.10. Centre of gravity test
§5.11. Rules applicable to strategic alliances
RESEARCH AND DEVELOPMENT AGREEMENTS
§5.12. Introduction
§5.13. Article 81(1)
(1) Agreements that generally do not constitute a restriction or distortion of
competition under Article 81(1)
(2) Agreements that almost always constitute a restriction or distortion of
competition under Article 81(1)
(3) Factors used to determine whether R&D agreements constitute a restriction
or distortion of competition under Article 81(1)

(4) Conclusion
§5.14. R&D Agreements Block Exemption
(1) Prerequisites for the grant of the exemption
(2) Threshold conditions for exemption
(3) Market share threshold and duration of exemption
(4) Hardcore restrictions
(5) Scope of the exemption – ancillary restrictions covered
(6) Withdrawal of the exemption
§5.15. Article 81(3)
(1) Creation of benefits that are passed on to consumers
(2) Indispensability
(3) No elimination of competition
4) Time of the assessment and duration of the individual exemption
JOINT PRODUCTION/SPECIALIZATION AGREEMENTS
§5.16. Introduction
§5.17. Applicable rules for subcontracting agreements
§5.18. Article 81(1)
(1) Agreements that generally do not constitute a restriction or distortion of
competition under Article 81(1)
(2) Agreements that almost always constitute a restriction or distortion of
competition under Article 81(1)
(3) Factors used to determine whether joint production agreements constitute a
restriction or distortion of competition under Article 81(1)
(4) Conclusion
§5.19. Specialization Agreements Block Exemption
(1) Prerequisites for the grant of the exemption
(2) Market share threshold and duration of exemption
(3) Hardcore restrictions
(4) Scope of the exemption – ancillary restrictions covered
(5) Withdrawal of the exemption
§5.20. Article 81(3)
(1) Creation of benefits that are passed on to consumers
(2) Indispensability
(3) No elimination of competition
PURCHASING AGREEMENTS
§5.21. Introduction
(1) Definition and scope
(2) Relevant Markets
§5.22. Article 81(1)
(1) Assessment under the Horizontal Guidelines
(2) Assessment under the De Minimis Notice
§5.23. Article 81(3)
(1) Creation of benefits that are passed on to consumers
(2) Indispensability
(3) No elimination of competition
COMMERCIALIZATION AGREEMENTS
§5.24. Introduction and scope
(1) Relationship between the Horizontal Guidelines and the Vertical Agreements
Block Exemption and Vertical Guidelines
(2) ‘Centre of gravity’ test
(3) Relevant markets to be assessed
§5.25. Article 81(1)

(1) Assessment under the Horizontal Guidelines
(2) Assessment under the De Minimis Notice
§5.26. Article 81(3)
(1) Creation of benefits that are passed on to consumers
(2) Indispensability
(3) No elimination of competition
§5.27. Specific types of Commercialization Agreements
(1) Agreements involving the appointment of competitors as distributors
(2) Agreements involving the creation of a joint distribution company without
involving the joint fixing of prices
(3) Agreements involving the joint fixing of prices
(4) Joint tendering
(5) Agreements involving common branding and/or joint advertising
STANDARDIZATION AGREEMENTS
§5.28. Introduction
(1) Definition
(2) Relevant Markets
§5.29. Article 81(1)
(1) Agreements that generally do not constitute a restriction or distortion of
competition under Article 81(1)
(2) Agreements that almost always constitute a restriction or distortion of
competition under Article 81(1)
(3) Agreements that may constitute a restriction or distortion of competition
under Article 81(1)
§5.30. Article 81(3)
(1) Creation of benefits that are passed on to consumers
(2) Indispensability
(3) No elimination of competition
ENVIRONMENTAL AGREEMENTS
§5.31. Introduction
(1) Definition
(2) Relevant markets
§5.32. Article 81(1)
(1) Agreements that generally do not constitute a restriction or distortion of
competition under Article 81(1)
(2) Agreements that almost always constitute a restriction or distortion of
competition under Article 81(1)
(3) Agreements that may constitute a restriction or distortion of competition
under Article 81(1)
§5.33. Article 81(3)
(1) Creation of benefits that are passed on to consumers
(2) Indispensability
(3) No elimination of competition
6. INTELLECTUAL PROPERTY
INTRODUCTION
RESTRICTIONS ON ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS
§6.1. Introduction
§6.2. Articles 81 and 82 as a defence against the enforcement of intellectual property rights
§6.3. The exhaustion principle
§6.4. Trade within the European Economic Area

(1) General principles
(2) Copyright: mechanical rights
(3) Copyright: performing rights
(4) Copyright: rental rights
(5) Copyright: supplementary royalties
(6) Copyright: computer programmes
(7) Trade marks: exhaustion and the Trade Mark Directive
(8) Trade marks: repackaging and parallel trade of trade marked goods
(9) Trade marks: removing labels from trade marked goods
(10) Trade marks: the ‘common ownership’ doctrine and assignment of rights
(11) Patents: exhaustion by licence
(12) Patents: exhaustion despite lack of protection in Member State of export
(13) Patents: compulsory licence in Member State of export
(14) Geographic scope of the exhaustion principle
(15) National legislation contrary to Article 30
§6.5. Imports of pharmaceutical products from the new EU Member States
(1) Exception to the exhaustion rule for certain pharmaceutical products
imported from acceding countries: the ‘Specific Mechanism’
(2) One-month notice requirement for parallel importers
§6.6. Imports from non-EEA countries
(1) Trade marked goods: no international exhaustion of rights
(2) The meaning of ‘consent’ under the exhaustion principle: unequivocal
consent required
(3) The burden of proof with respect to the exhaustion principle: a qualified rule
may be necessary under certain circumstances
(4) The concept of ‘putting on the market’ under the exhaustion principle:
realisation of the economic value of the trade mark as the decisive criterion
(5) Transit of trade marked goods and the exhaustion principle: transit does not
amount to the importation into the Community
(6) Other forms of intellectual property: rule on international exhaustion depends
on whether the Community has adopted harmonizing measures
TECHNOLOGY TRANSFER
§6.7. Regulation of patent, know-how, and software copyright licences
§6.8. Categories of licensing agreements
(1) Agreements falling outside Article 81(1), including de minimis agreements
(2) Agreements exempted by the Technology Transfer Block Exemption
(3) Agreements eligible for individual exemption under Article 81(3)
(4) Agreements falling within Article 81(1) that do not qualify for an exemption
§6.9. Application of Article 82
§6.10. Relationship between the Technology Transfer Block Exemption and other block
exemptions
(1) The Technology Transfer Block Exemption and the Vertical Agreements
Block Exemption
(2) The Technology Transfer Block Exemption and the Specialization and R&D
Agreements Block Exemptions
§6.11. The Former Technology Transfer Block Exemption: essential features
§6.12. The Technology Transfer Block Exemption: the current technology transfer regime
(1) Underlying assumptions and principal features of the Technology Transfer
Block Exemption
(2) Scope of the Technology Transfer Block Exemption
(3) The new market share thresholds
(4) Dynamic markets where market shares are not good indicators of market
power
(5) Hardcore restrictions

(6) Excluded restrictions
(7) Withdrawal and non-application of the block exemption
§6.13. Treatment of specific licensing provisions under the Technology Transfer Guidelines
(1) Royalty obligations
(2) Exclusive and sole licensing
(3) Territorial and customer restrictions
(4) Output restrictions
(5) Field of use restrictions
(6) Captive use restrictions
(7) Tying obligations
(8) Non-compete obligations
(9) Exclusive grantbacks of severable improvements and new applications
§6.14. Settlement and non-assertion agreements
(1) General principles
(2) Application of the Technology Transfer Block Exemption to settlement and
non-assertion agreements
(3) Competitive analysis of settlement and non-assertion agreements
(4) Agreements concerning future developments
(5) No-challenge obligations in settlement and non-assertion agreements
§6.15. Technology pools
(1) General principles
(2) Complementary versus substitute technologies comprised in the pool
(3) Essential versus non-essential technologies comprised in the pool
(4) Assessment of individual restraints related to the technology pool
(5) Pool management and institutional arrangements
LICENCES OF INDUSTRIAL OR COMMERCIAL PROPERTY RIGHTS OTHER THAN
PATENTS, KNOW-HOW, AND ANCILLARY LICENCES
§6.16. Introduction
§6.17. Trade mark licences
(1) General remarks regarding territorial restraints
(2) The Campari case
(3) The Moosehead-Whitbread case
(4) Trade marks under the Technology Transfer Block Exemption
(5) Council Directive 89/104 on the approximation of the laws of the Member
States relating to trade marks
(6) Council Regulation 40/94 on the Community trade mark
§6.18. Copyright licences
(1) Exclusive copyright licences
(2) Field of use restrictions in copyright licences
(3) Other typical restrictive clauses in copyright licensing agreements
(4) Copyright collecting societies
(5) One-stop, multi-territorial copyright licences for online use
(6) Council Directive 91/250 on the legal protection of computer programs
§6.19. Software licensing
§6.20. Licences of plant breeders’ rights
TRADE MARK DELIMITATION AGREEMENTS
§6.21. Introduction
§6.22. Agreements not to use trade marks in certain Member States
§6.23. Unhampered movement of goods bearing the trade mark
7. CONTROL OF MERGERS, ACQUISITIONS AND CERTAIN JOINT VENTURES
INTRODUCTION

§7.1. Overview
(1) The genesis of the Merger Regulation
(2) The 1997 amendments
(3) The 2002-2003 merger control review and the 2004 Merger Regulation
(4) Key developments since 2004
JURISDICTION OF THE COMMISSION TO REVIEW MERGERS
§7.2. Overview: concentrations with Community dimension
(1) The concept of a concentration
(2) Community dimension
§7.3. Concentrations falling outside the thresholds
§7.4. Exceptions to the one-stop shop principle
(1) Member State protection of legitimate interests
(2) Referrals from the Commission to one or more Member States
(3) Referrals from three or more Member States to the Commission
(4) Referrals by a Member State to the Commission
§7.5. Identifying the entities whose turnover must be considered in assessing ‘Community
dimension’
(1) Identifying the ‘undertakings concerned’ – overview
(2) Undertakings concerned in the case of mergers
(3) Undertakings concerned in the case of acquisitions of sole control
(4) Undertakings concerned in the case of acquisitions of joint control
(5) Undertakings concerned in the case of acquisitions of control by a joint
venture
(6) Undertakings concerned in the case of changes from joint to sole control
(7) Undertakings concerned in the case of de-mergers (break up of companies)
(8) Undertakings concerned in the case of exchange of assets (‘asset swaps’) and
in the context of outsourcing agreements
(9) Undertakings concerned in the case of acquisitions of control by investment
funds
§7.6. The definition of ‘turnover’
(1) Basics of calculating turnover
(2) Net turnover
(3) Group turnover
(4) Treatment of ‘internal’ turnover
§7.7. Geographical allocation of turnover
§7.8. Special rules for financial institutions and insurance undertakings
(1) Credit and other financial institutions
(2) Insurance undertakings
(3) Mixed groups
§7.9. Calculating turnover in the case of acquisition of assets without sales
§7.10. Extraterritorial application of the Merger Regulation
(1) The rule
(2) Case law
SUBSTANTIVE REVIEW BY THE COMMISSION
§7.11. Sector-specific organization of merger control
§7.12. Investigative powers
§7.13. Defining the relevant markets
(1) Relevant market definition
(2) Defining relevant markets in practice
§7.14. Test of compatibility with the common market: significant impediment of effective
competition, in particular as a result of the creation or strengthening of a dominant
position
§7.15. Horizontal mergers: non-coordinated/unilateral effects

(1) Market position/market share
(2) The degree to which the merging firms are close competitors
(3) The degree to which customers may switch suppliers
(4) The likelihood of competitors increasing supply
(5) The ability of the merged entity to hinder expansion by competitors
(6) The elimination of an important competitive force
(7) Potential competition
(8) Barriers to entry
(9) Countervailing buyer power
(10) Efficiency considerations
(11) Failing firm defence
§7.16. Horizontal mergers: coordinated effects/collective dominance
(1) The legal test for coordinated effects/collective dominance
(2) Case law on coordinated effects/collective dominance
§7.17. Vertical mergers
(1) Introduction
(2) Market shares and concentration levels
(3) Non-coordinated/unilateral effects: foreclosure
(4) Coordinated effects
(5) Examples of case law on vertical mergers
§7.18. Conglomerate mergers and portfolio power
(1) Market shares and concentration levels
(2) Non-coordinated/unilateral effects: foreclosure
(3) Coordinated effects
(4) Examples of case law on conglomerate mergers
§7.19. Article 2(4) and 2(5): Coordinative effects of full-function joint ventures
(1) Overview
(2) Substantive assessment under Article 2(4) and 2(5)
(3) Example of case law on coordinative effects of full-function joint ventures:
Lockheed Martin/Boeing/United Launch Alliance JV
§7.20. Ancillary restraints
(1) Introduction
(2) Requirements for restrictions to be considered ancillary
(3) Common types of ancillary restraints as addressed in the Notice on Ancillary
Restraints
THE PROCESS OF NOTIFYING A CONCENTRATION TO THE COMMISSION
§7.21. Formalities
§7.22. Timing
§7.23. Completing Form CO
(1) Overview
(2) Information that must be provided in Form CO
(3) Copies that must be provided
(4) Correct and complete information
§7.24. Simplified procedure
§7.25. Pre-notification consultations
§7.26. Suspension requirement
(1) Suspension period
(2) Waiver of suspension requirement
(3) Consequences of contravening the suspension requirement
(4) Consequences of failing to notify and providing incorrect/misleading
information
(5) Abandonment of concentrations
PROCEDURE FOR REVIEW OF CONCENTRATIONS AND APPLICABLE DEADLINES

§7.27. First phase timetable
(1) Types of first phase decisions
(2) Publication of notice of prior notification
(3) Communication with Member States in the first phase
(4) Verification, requests for information and investigation in the first phase
(5) Right to be heard in the first phase
(6) Inter-service meetings and ‘peer review panels’ in the first phase
(7) Modification of the concentration, conditions and obligations in the first
phase
(8) Deadline for referral to Member States
(9) Publication of Phase I decisions
(10) Revocation of Phase I decisions
§7.28. Second phase timetable
(1) Requests for information and investigations
(2) Suspension and extension of 90 working day time limit
(3) Statement of Objections
(4) Access to file
(5) Right of reply to Statement of Objections
(6) Oral hearing
(7) ‘Triangular’ or ‘contradictory’ meetings
(8) Commitments and undertakings
(9) Draft decision
(10) Consultation with Advisory Committee
(11) Decisions ending a Phase II investigation
(12) Publication of Phase II decisions
(13) Revocation of Phase II decisions
§7.29. Referrals between the Commission and the Member States
§7.30. Cooperation between the Commission and the Member States
(1) Requirement of cooperation under the Merger Regulation
(2) Requests for information and investigations
(3) Advisory Committee on concentrations
(4) Importance of cooperation
§7.31. International Cooperation
(1) General introduction
(2) EU-US cooperation
(3) EU cooperation with other countries
§7.32. Remedies
(1) Introduction
(2) Structural v. behavioural commitments
(3) Timetable for commitments
(4) Enforceability of commitments
JUDICIAL REVIEW OF MERGER DECISIONS
§7.33. Interim relief
(1) Prima facie case
(2) Urgency
(3) Balance of interests
§7.34. Acts subject to review
§7.35. Standing of merging parties
§7.36. Standing of third parties
(1) Direct concern
(2) Individual concern
§7.37. Grounds for review
§7.38. The Court’s accelerated procedure
§ 7.39. Damage claims on the basis of Article 288(2)

8. ABUSE OF A DOMINANT POSITION
INTRODUCTION
THE CONCEPT OF ‘ABUSE’
§8.1. Exploitative abuses and exclusionary abuses
§8.2. The object or effect of the behaviour at issue
§8.3. The ‘special responsibility’ of dominant firms
§8.4. The required degree of linkage between the dominated market and the market on
which the abuse occurs
§8.5. The required degree of linkage between the dominant undertaking and the
undertaking which commits the abuse
§8.6. Objective justification
§8.7. Commission’s Guidance on Abusive Exclusionary Conduct
ABUSIVE PRACTICES
§8.8. Pricing practices
(1) Charging excessive prices
(2) Extracting excessively low purchase prices
(3) Price discrimination
(4) Rebate schemes
(5) Predatory pricing
(6) Margin squeezing
§8.9. Refusals to deal
(1) Introduction
(2) Refusal to supply
(3) Refusal to license
(4) Essential facilities
(5) Justifications for refusals to deal
(6) Refusal to purchase
§8.10. Discrimination
(1) Discriminating between nationals or residents of different Member States
(2) Other forms of discrimination
§8.11. Tying
(1) The tying and tied goods are two separate products
(2) The undertaking concerned is dominant in the tying product market
(3) The undertaking does not give customers a choice to obtain the tying product
without the tied product
(4) The tie forecloses competition
(5) There is no objective justification
§8.12. Unfair terms and conditions
(1) Tetra Pak (II): abusive contractual requirements
(2) SABAM: copyright management societies requiring assignment of copyright
(3) Alsatel: unilateral price-setting and lease extensions
§8.13. Miscellaneous abuses
(1) Single branding and exclusive purchasing obligations
(2) Abusive use of public procedures and regulations
(3) Restrictions on resales
(4) Abusive licensing practices
(5) Limiting production, markets and technical development
(6) Market-sharing agreements

9. ANTITRUST AND THE STATE
INTRODUCTION
§9.1. Structure
§9.2. Preliminary remarks
STATE MEASURES THAT MAY JEOPARDIZE THE ATTAINMENT OF THE
COMPETITION LAW OBJECTIVES OF THE TREATY
§9.3. Relevant Treaty provisions: Articles 10, 3(1)(g), 81 and 82
§9.4. The INNO/Van Eycke line of case law
(1) INNO
(2) Van Eycke
(3) “Complicity” cases: State measures that require, favour or reinforce
restrictive agreements
(4) Delegation cases
(5) Sovereign immunity
(6) The duty of national competition authorities to disapply anti-competitive
State measures in breach of Article 10 read in the light of Article 81
(7) Direct effect of Article 10 read in the light of Article 81
STATE MEASURES RELATED TO PUBLIC OR ‘PRIVILEGED’ UNDERTAKINGS
§9.5. Introduction
§9.6. Scope, application and enforcement of Article 86(1)
(1) The concept of an undertaking
(2) Undertakings with special or exclusive rights (‘privileged’ undertakings)
(3) Public undertakings
(4) State measures
§9.7. State measures contrary to the Treaty: background and three strands of case law
(1) Grant of special or exclusive rights acceptable in principle
(2) Grant of special or exclusive rights impermissible in some circumstances
(3) Exemptions from the application of Article 86(1)
§9.8. Article 86(3): the enforcement and legislative powers of the Commission
(1) Broad discretion for the Commission under Article 86(3)
(2) Commission’s power to adopt decisions under Article 86(3) and the right to
appeal
(3) Commission’s power to adopt directives under Article 86(3)
EXEMPTION FROM PROHIBITION IN CASES OF UNDERTAKINGS ENTRUSTED
WITH THE OPERATION OF SERVICES OF GENERAL ECONOMIC INTEREST
§9.9. Introduction
§9.10. Scope of Article 86(2)
(1) Entrusted undertakings
(2) Services of general economic interest
(3) Revenue-producing monopolies
§9.11. Justification for the non-application of the competition rules
(1) Obstruction of the performance by an entrusted undertaking of its particular
SGEI tasks: necessity and proportionality of the State measure
(2) Application of exemption under Article 86(2) must not affect development of
trade to an extent contrary to the Community interest
§9.12. Compensation for SGEI tasks, Altmark and the ‘Altmark package’
10. PROCEDURE
INTRODUCTION

§10.1. Rules of procedure generally
§10.2. Rules of procedure under Regulation 17
(1) The notification process
(2) Outcome of the notification process
§10.3. Drastic reform of the procedural rules: the Regulation on Procedure
(1) Abolition of the notification and exemption system
(2) Decentralized application of Articles 81 and 82
(3) Concurrent application of Articles 81 and 82 and national competition law
(4) Challenges ahead
§10.4. Impact of fundamental rights on competition enforcement procedure
(1) Fundamental rights and the law of the European Union
(2) Fundamental rights and competition law proceedings
§10.5. Infringement proceedings: overview
INVESTIGATIONS CONDUCTED BY THE COMMISSION
§10.6. Opening of investigation
(1) Complaints
(2) Handling and assessment of complaints by the Commission
(3) Review of the Commission’s handling process of complaints by the European
Ombudsman
(4) Procedural rights of complainants
(5) Other events triggering an investigation
§10.7. Requests for information
(1) Procedure
(2) ‘Necessary’ information
(3) Incorrect information
§10.8. On-the-spot inspections
(1) Subject matter of the inspection
(2) Right of entry
(3) Right to search
(4) Access to electronic documents
(5) Duty to assist
(6) Copies of books and records
(7) Seals
(8) Oral explanations
(9) Assistance from other competition authorities
§10.9. Interviews
§10.10. Sector inquiries
§10.11. Limitations on the Commission’s investigation powers
(1) Proportionality rule
(2) Territorial reach
(3) Legal privilege
(4) Right to privacy
(5) Right to remain silent (or ‘privilege against self-incrimination’)
(6) Use of information – purpose of the inquiry
(7) Professional secrecy
PROCEDURE BEFORE THE COMMISSION
§10.12. Main actors in the procedure
(1) The Commission and the parties concerned
(2) The Hearing Officer
(3) Complainants and interested third parties.
§10.13. Initiation of proceedings
§10.14. Statement of Objections
§10.15. Access to the file

(1) The defendants’ right of access to the file
(2) Access to the file under the Transparency Regulation
§10.16. Written and oral comments on the proceedings
(1) Written comments
(2) Oral hearing
(3) The reports of the Hearing Officer
ADOPTION OF DECISIONS BY THE COMMISSION
§10.17. Interim measures
(1) Conditions
(2) Procedure
§10.18. Recommendations
§10.19. Advisory Committee
§10.20. Final decision
(1) Possible relief
(2) Formal requirements
(3) Timing – duty to act within a reasonable time
(4) Trustee
§10.21. Findings of inapplicability
§10.22. Withdrawal of a Block Exemption in individual cases
§10.23. Guidance letter
FINES AND PERIODIC PENALTY PAYMENTS
§10.24. Fines for procedural infringements
§10.25. Fines for substantive breaches of competition rules
(1) General legal principles
(2) Legal maximum
(3) Legal criteria: gravity and duration
(4) The Commission Fining Guidelines
(5) Payment
§10.26. Periodic penalty payments
§10.27. Leniency
(1) Immunity from fines
(2) Reduction in fines
(3) Procedure
(4) Leniency and private enforcement
(5) Leniency and groups of companies
(6) Leniency and judicial review
(7) Leniency and international cartels
(8) Entry into force
§10.28. Limitation periods
(1) Imposition of penalties
(2) Enforcement of sanctions
§10.29. Parent/Subsidiary liability
§10.30. Succession
ALTERNATIVE ENFORCEMENT PROCEDURES
§10.31. Informal settlements
§10.32. Commitments procedure
(1) Scope of the commitments procedure
(2) Procedural steps
(3) Commitments decisions
(4) Procedural rights
§10.33. Settlement procedure
(1) Scope of the settlement procedure

(2) Procedural steps
(3) ‘Settled’ decision
(4) Procedural rights under the settlement procedure
JUDICIAL REVIEW
§10.34. Jurisdiction
§10.35. Direct actions
(1) Action for annulment
(2) Action for failure to act
(3) Action for damages based on the non-contractual liability of the Community
§10.36. Interim measures
§10.37. Third party intervention
§10.38. Standard of review
§10.39. Preliminary rulings
§10.40. Appeals to the Court of Justice
§10.41. Costs
§10.42. Length of proceedings
11. PRIVATE ENFORCEMENT
NATIONAL COURTS
§11.1. Introduction
§11.2. Decentralization process
§11.3. Advantages and disadvantages of procedures before national courts
§11.4. Application of EC competition law by national courts
(1) Powers of national courts
(2) Parallel or consecutive application of the EC competition rules by the
Commission and by national courts
(3) Right to damages before national courts
(4) Procedural aspects of enforcement of EC competition law before national
courts
§11.5. Cooperation between national courts and the Commission
(1) Assistance of national courts by the Commission
(2) Assistance of the Commission by national courts
§11.6. Conclusion
ARBITRATION
§11.7. Introduction
§11.8. EC competition law and arbitration: general principles
§11.9. Impact of the Regulation on Procedure on arbitration
12. SPECIAL SECTORS
TELECOMMUNICATIONS
§12.1. Introduction
§12.2. Competition issues arising in the electronic communications sector
(1) Article 81
(2) Application of the Merger Regulation in the electronic communications
sector
(3) Article 82
(4) Sector inquiries
§12.3. Regulatory framework applying to the electronic communications sector
(1) The ‘old’ regulatory framework

(2) The new regulatory framework
(3) Further EU telecommunications reform
(4) Third generation (3G) mobile communications
TRANSPORT
§12.4. Introduction
§12.5. Air transport
(1) Introduction
(2) Market liberalization
(3) Procedural framework for enforcement of competition law in the air transport
sector: overview
(4) Competition priorities in the air transport sector
§12.6. Maritime transport
(1) Introduction
(2) The implementation of Articles 81 and 82 of the EC Treaty in the maritime
sector
(3) The Consortia Block Exemption
§12.7. Transport by rail, road and inland waterway
(1) Introduction
(2) Regulation 1017/68
(3) Liberalization in the railway sector
POSTAL SERVICES
§12.8. Introduction
§12.9. Legislative developments in the postal sector
(1) Directive 97/67/EC and amendments
(2) Postal Notice
§12.10. Cases and decisions
(1) Application of competition rules/the scope of the reserved area
(2) Abuse of a dominant position
(3) Price-fixing agreements
(4) Recent developments
ELECTRICITY AND GAS
§12.11. Introduction
(1) Background
(2) History
(3) The institutional framework common to the electricity and gas markets
§12.12. The Electricity Directive (the 2003 regime)
(1) Quantitative liberalization
(2) Qualitative liberalization
(3) Public service objectives
(4) The Third Energy Package (expected to enter into force in 2009)
§12.13. Regulation 1228/2003 on cross-border exchanges of electricity
(1) TSO compensation
(2) Access charges
(3) Provision of information regarding interconnection capacities
(4) Congestion management
(5) New interconnectors and exemptions from TPA obligations
§12.14. Safeguarding security of electricity supply and promoting infra-structure investment
(1) Roles and responsibilities of TSOs and electricity suppliers
(2) Balancing supply and demand
(3) Network investment
(4) Interconnector construction
§12.15. The Gas Directive (the 2003 regime)

(1) Quantitative liberalization
(2) Qualitative liberalization
(3) Public service objectives
(4) New infrastructure and exemptions from TPA obligations
(5) The Third Energy Package (expected to enter into force in 2009)
§12.16. Conditions of access to the gas transmission networks
(1) Access charges
(2) Capacity allocation and congestion management procedures
(3) Balancing and imbalance charges
(4) Secondary markets
§12.17. Safeguarding security of gas supply
(1) Defining national security of gas supply policy
(2) Minimum security of gas supply standards
(3) Commission monitoring and possible intervention
§12.18. Case law and decisional practice
(1) Case law of the Court of Justice
(2) Commission practice
THE INSURANCE SECTOR
§12.19. The applicability of the competition rules to the insurance industry
§12.20. Insurance Block Exemption
(1) Joint calculations, tables and studies of risks
(2) Standard policy conditions and models
(3) Common coverage of certain types of risks
(4) Security devices
(5) Review
§12.21. Insurance intermediaries
§12.22. Business insurance
BANKING
§12.23. Introduction
(1) Application of competition law to banking services
(2) Merger Control
(3) Effect on trade between Member States
(4) The sector inquiry, the Green Paper on Retail Financial Services and the
Single Market Review
§12.24. Application of Article 81 to price agreements
(1) Price agreements concerning services provided by banks to their customers
(2) Price agreements concerning services provided between banks
§12.25. Application of Article 81 to non-price agreements
§12.26. Article 82
COMPETITION POLICY AND SPORTS
§12.27. Introduction
§12.28. Specific characteristics of sport and their implications for competition law
§12.29. Organization of sport
(1) Principle of territoriality
(2) Monopoly of the federations
(3) Rules relating to the ownership of sporting clubs
§12.30. Broadcasting rights
(1) Particularities of sport broadcasting
(2) Relevant market
(3) Exclusivity
(4) Joint selling and purchasing
(5) Organizational rules in the area of broadcasting

§12.31. Other sources of revenues for associations and clubs
(1) Ticketing
(2) Sponsorship agreements and exclusivity granted to providers of equipment
§12.32. Rules relating to players
(1) Movement of players/transfer rights
(2) Rules on players’ agents
(3) Doping
SECTORS SUBJECT TO SPECIFIC TREATY RULES: NUCLEAR, AGRICULTURE
AND DEFENCE
§12.33. Outline of this section
§12.34. Nuclear energy
§12.35. Agriculture
(1) Application of the competition rules to agriculture
(2) Exceptions under the Regulation on Competition in Agricultural Products
(3) Procedure
§12.36. Defence
Annex I BASIC COMPETITION PROVISIONS OF THE EC TREATY
Annex II COMMON NAMES USED FOR LEGISLATION, NOTICES, GUIDELINES AND
OTHER COMMISSION DOCUMENTS
Annex III TABLE OF CASES
INDEX