The Lawfulness and Acceptability of Enforcement of ... - Stibbe

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26 situation — to authorities — has almost and 586 WORLD COMPETITION presumptions merely forms the backdrop against which the decision-making The concise summary above of some of the relevant concepts and legal rationale underlying the presumption actually corresponds to the reality of the situation in which it is being applied. explain this below. law practitioners. On the contrary, the summary is boilerplate text that is included developed. The summary does not contain any news for cartel practice of the European Commission — 3.3 THE RISK OF FORMALIZATION under the chapter ‘Legal assessment’ in practically every Statement of Objections of procedures. It remains difficult in practice — the EU Commission as well as national equivalents in Member State cartel ‘per Se’ infringement under US antitrust law. In US antitrust lax this concept relates to practices that, according to earlier experiences and analyses, will in Article 101 TFEU prohibits both conduct that has the effect of appreciably Court of Justice judgment relating to the Dutch T-Mobile case. restricting competition and conduct that has the restriction of competition as its object. In the T-Mobile case, the Dutch Trade and Industry Appeals Tribunal (CBB) very important, precisely because the qualification of a practice as an ‘object’ restriction of competition as its object. Defining the boundaries of that concept was asked the Court of Justice precisely when conduct can be considered to have the practice had (or could have had) any appreciable effect on competition. restriction dispenses the prosecuting authority from having to prove that this addition, the classification of an infringement as a restriction by object (or hardcore restriction) at present inexorably triggers the qualification of the practice as ‘cartel’ behaviour, which has practical and legal implications in itself practice always result in a restriction of competition. For reasons of judicial efficiency, it is justified not to require in those cases that claimants (which include behaviour will have led to a restriction of competition. It is clear from the antitrust authorities in the American context) have to prove again that ‘per se’ type preliminary question asked by the Dutch Industrial and Trade Appeals Tribunal in restrictions, see VoIk v. Vervaecke, cited n. 17 above. Judgment of the Court ofJustice ofJune 4, 2009 in Case C-8/08, T-Mobile, cited n. 16 above. Nota bene: the requirement of appreciable effects on competition also applies to hardcore A relatively new and very broadly phrased legal rule was formulated in the In a certain sense, the object restriction is the European counterpart of the rebut the legal presumptions formulated in general terms. We shall that of the national competition regardless of the factual 2D As we know, 26 In
following observation: comparable way in European competition law. Its judgment contained the T-Mobile that it assumed that the term ‘hardcore restriction’ could be defined in a T-Mobile, cited n. 16 above. para. 43. of the ruling (UN: 13C1396). Trade and Industry Appeals Tribunal, ruling of Dec. 31, 2007, informal translation of ground 9.5.3.3 long-standing and highly institutionalized cartel. On the contrary, the preliminary Commission or the national competition authorities that have determined this prioritization. After all, it is the undertakings themselves that present these issues hardcore restrictions to those practices that, according to experience, will always or question arose in the factual context consisting of a single exchange of major actual cartels to ‘exchanges of information’. To a certain extent, it is not the of competition, whereas an examination — risk will materialize have already emerged. The focus in the cartel law enforcement activities of the Commission and national competition authorities has shifted from with that specific commercially sensitive information. presumptions in cartel law, to incorrect and unfair results. The first signs that this There is a risk that the T-Mobile criterion will lead, together with other legal information during a meeting which was clearly not intended beforehand to deal It cannot be said that this legal rule was formulated in the context of a EC where, according to its content and objectives and having regard to its legal and restriction or distortion of competition within the common market. 25 a concerted practice pursues an anti-competitive object for the purpose of Article 81(1) Advocate General in T-Mobile, the Court ofJustice held that: almost always result in the restriction of competition. Following the opinion of the However, the Court of Justice chose in T-Mobile not to restrict the category of (false positive result). 27 which can be left out following the judgment other powers on the relevant market, and will only not occur in highly exceptional illegality, because the actual negative effects will be undeniable and will occur regardless of in Consten/Grundig — would have shown that in fact these effects are not taking place Every undertaking participating in such a concerted practice should be aware of its restrict or distort competition. agreement or concerted practice, regardless the economic circumstances, always or nearly always prevent, concerted practice has the object of restricting competition jf experience shows that such an or concerted practice will be attributed the object of prevention, restriction or distortion economic context, it is capable in an individual case of resulting in the prevention, and by applying competition provisions it can be concluded that an agreement or circumstances [...j. Such an interpretation also seems to be necessary in order to avoid that an agreement In this respect, the Trade and Industry Appeals Tribunal considers that based on case law ENFORCEMENT OF EUROPEAN CARTEL LAW 587
Page 1 and 2: * Cartel Law’. World Competition
Page 3 and 4: not offer the guarantee that this c
Page 5 and 6: the appropriateness and proportiona
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Page 11 and 12: practices with appreciable effect o
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The Lawfulness and Acceptability of Enforcement of ... - Stibbe

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