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# Appunti di Competition Law

Appunti di Competition law. Temi principali: the three anticompetitive practices, restrictive agreements, abuses of dominance, concentrations and their regulations according to the principles of CL. Università degli Studi di Pavia - Unipv. Scarica il file in formato PDF!

Esame di Competition law docente Prof. G. Petroboni

Anteprima

### ESTRATTO DOCUMENTO

3. each of the undertakings concerned achieves more than a given percentage of its aggregate

EU-wide turnover within one and the same Member State, more than two-thirds.

Concentrations with Union dimension: second set of thresholds (article 1, comma 1-2, Reg.

No. 139/04)

1. the combined aggregate worldwide turnover of all the undertakings concerned, more than EUR

2500 million AND

2. in each of at least three Member States, the combined aggregate turnover of all the

undertakings concerned, more than EUR 100 million AND

3. in each of at least three Member States included for the purpose of point 2, the aggregate

turnover of each of at least two of the undertakings concerned, more than EUR 25 million AND

4. the aggregate UE-wide turnover of each of at least two of the undertakings concerned, more

than 100 million UNLESS

5. each of the undertakings concerned achieves more than two-thirds of its aggregate

Community-wide turnover within one and the same Member State.

Restrictive Agreements and Abuses of Dominance (art. 101 TFEU and art. 102 TFEU)

…within the internal market

• …within the internal market or in a substantial part of it

• …which may affect trade between Member State

We have two elements to understand the scope of application:

the concept of trade: not only the traditional exchanges of goods and services, but all cross-

• border economic activities, including establishment

between Member States: at least two Member States

- any restriction on import and/or export activities concerning one Member State implies that the

condition of the harm of trade between Member States is met

- any agreement or practice which have as object or effect the maintenance of the current market

structure within an entire Member State, has also the effect to partition that market, isolating it

from the trade with other Member States

- sometimes, the conditions is met even if the agreement or the practice concerns only an

important portion of a Member State: for example, a port or an airport, because a trade and

transport connected with such facilities cannot influence the trade between Member States.

But a question arises:

Which relevance have…

the nationality of the firms concerned?

• (for agreements) the place where the contract was entered into?

• (for agr.) the law which is applicable to the contract?

• (for concentrations) the place where the production sites are?

No one: so called “effects doctrine” applies:

- if the agreement/the practice has effects within the internal market, Eu CL applies

- if the concentrations concerns firms overcoming EU turnover thresholds above indicated, EU CL

applies

Competition laws in Europe beyond EU CL

Domestic (or National) CL

- in some cases is applicable only to anti-competitive practices which are not subject to EU law

(so called single barrier)

- in other cases domestic competition law is applicable to anti-competitive practices which are

also subject to EU competition law (so called double barrier)

In any case, strong influence of EU CL on (the evolution of) domestic competition laws.

3

Applicability and enforcement

Applicability of Eu competition law is different from the institutional context where Eu CL is

enforced. The first refers to whether Eu CL is applicable to a given antic. practice, while the second

refers to which authorities are entrusted to enforce EU CL.

Concentrations: if Eu law applies, the institutional context for public enforcement is exclusively at

EU level.

Agreements and AoD: if Eu applies, national authorities are directly entrusted to enforce it.

General framework: National authorities are entrusted by the enforce of National CL for all the

three antic. practices.

National Authorities can also be entrusted by the enforce of EU CL for restrictive agreements and

AoD.

European Authorities are entrusted by the enforce of EU CL exclusively for concentrations.

Lecture 3: Three anticompetitive practices, one common issue

Whatever anti-competitive practice is considered, the need of a double analysis arises:

determining the market power of a firm/the firms concerned

• assessing the economic effects of the considered practice on competition

Whatever anticompetitive practice is considered, a common issue is crucial: the relevant market.

The relevant market: the role of the practice concerned

defining the relevant market implies different analysis depending on the three, different,

anticompetitive practices.

For agreements and abuses it’s an ex-post definition. A photograph of the market in the

• recent past is done and also an assessment of the effects that actually derived from the

considered practices.

For concentrations ii’s an ex ante definition. In this case there is a prospect of the future

• market in two conditions: as resulting from the considered concentration and as coming from the

natural evolution of the market itself.

Relevant market: the legal concept

The legal concept of rm is: the place where firms exert market power, as much as they can (due to

the competitive pressure of other competitors).

Defining the rm means identifyng those actual competitors of the undertaking involved that are

capable

of constraining those undertaking’s behavior and

• of preventing them from behaving independently of effective competitive pressure.

NOT as the physical area where firm sells its products NOR as the economic sector where it

belongs.

The relevant market: two level of analysis

Definition of rm as identification of the competitors of the firms concerned:

from a merceological point of view (so called relevant product market)

• from a geographical point of view (so called relevant geographical market)

• 4

Relevant product market concerned the interchangeability of goods and services offered by the

firms involved (if they are interchangeable they belong to the same r.p.m.).

Relevant geographical market concerned the homogeneity of the conditions of competition

where the firms involved operate (if they operate in areas where such conditions are

homogeneous, they belong to the same r.g.m.).

The relevant product market

Demand-side substitutability: all those products and/or services which are regarded as

interchangeable, or substitutable, by the customer, by reason of the product’s characteristics, their

prices and their intended use.

Examples of different relevant product market (demand side)

beverages: with gas/without gas - alchoolic/non alcoholic - distributed via supermarkets or via

• horeca - only to quench thirst/mainly in a social context

toothbrushes: manual/electric

• air carries: time sensitive consumers/price sensitive consumers

• pharmaceutical: one more effective with more collateral effects and the others less effective but

• with less collateral effect.

Supply-side substitutability: the relevant market include those suppliers that are able to switch

production to the relevant products and market them in the short term without incurring significant

additional costs or risk in response to small and permanent changes in relative prices.

Examples of same rpm (supply side): paper: copy paper/art book paper

Examples of different rpm (supply side): beverages: fruit based/milk based

Demand side and supply side substitution: does it exist any hierarchy between the two?

Generally speaking there is no hierarchy: Commission notice 1997 says that supply side subs. may

also be taken into account in those situations in which its effects are equivalent to those of demand

substitution in terms of effectiveness and immediacy.

Actually, supply side subs. seems to be a means to check and correct the results of the demand

side subs. : Commission Notice says switch of production by suppliers, without costs and risks may

happen in those situations which typically arise when companies market a wide range of qualities

and grades of one product: even if, for the customers, the different qualities are not substitutable,

the different qualities will be grouped into one product market.

The relevant geographical market

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.

Supply-side: whether the conditions of competition are homogeneous or not in the areas where

the firms concerned offer their products and services.

Example: cement, rim limited: operating area of a cement factory depends on the quantity and

quality of the roads, the traffic conditions, the geographical characteristics.

Demand side: whether customers are willing to move and search better conditions of sale or

supply.

Example: banks and insurance, rum mainly local: customers reluctant to move from home.

5

Methods for determining

The main method:

1. The SSNIP test (at the same time rpm and rgm): imagining a hypothetical monopolist of a

given product in a given area who practices a Small but Significant Non-transitory Increase of

Price (5-10%).

Assessing whether, in response, the customers would switch to readily available substitutes or to

• suppliers located elsewhere.

If substitution were enough to make the price increase unprofitable (because of the resulting loss

of sales), additional substitutive products and areas included in the relevant market.

The test is completed when a set of products or services and areas is identified where the price

increase would be profitable.

Assessing whether, in response, other firms would switch their production in order to include the

• product of the candidate market.

Some additional methods (mainly for rpm):

evidence of actual substitution in the past (shock analysis)

• surveys, studies and reports on views of customers and competitors of the firms involved.

Lecture 4: The notion of undertaking

The anticompetitive agreements: an overview of art. 101 TFEU

General prohibition and specific cases: article 101, par. 1, TFEU

Prohibition art. 101, par.1, TFEU and exemptions art. 101, par. 3 , TFEU

The reasons for the prohibition

• distorsive effects on allocation (pre-determining of prices and quantities, regardless of the

demand, transfert to the producers of all the surplus paid by the consumers.

• negative effects on innovation in productive and distributive process.

• additional costs for the set up and the functioning of the agreement (monitoring of the parties’

actual behavior, sanctions in case of any breach of the agreement, catching of the outsiders.

The reasons for the exemptions

• (possible) positive effects on productive and distributive efficiency

• (possible) positive effects on technological progress and/or products’ quality

The general prohibition: the elements

• undertakings

• agreements between undertakings / decisions by association of undertakings / concerted

practices.

• which have as their object or effect the prevention, restriction or distortion of competition

• which may effect trade between member states

The concept of undertaking

There is no definition in legislation, neither primary or secondary.

The case law: a functional view: any entity is engaged in an economic activity, that is the supply

of goods or services in a given market; an activity which may have effect on competition in that

market.

There is no relevance for the: registered address, ownership, ways of financing, legal status, profit-

making purpose, existence of a professional organization engaged in the activity.

The focus is on the function of the entity in the context.

6

What is an economic activity? some (extreme) cases from the case law:

• individuals (as long as they do not act as employees or consumers; the case of the artist/

performer who sells IP rights on his/her performances)

• members of liberal professions (notwithstanding the nature of public law of their activity: customs

agents , lawyers, architects, etc.)

• sports associations engaged in commercial activities (selling broadcasting rights and

merchandising articles, concluding sponsoring agreements, etc.)

What is not an economic activity? some examples:

• activities which are connected with the exercise of the powers of a public authority: public order,

safety, protection of the environment etc.

• activities which are carried out on the basis of the principle of solidarity: public system of

healthcare, social protection such as pensions

The crucial character of a non economic activity is the lack of an offer to the market

The delicate issue of procurement activity which is ancillary to non economic activities.

Lecture 5: the concept of undertaking and the case of groups of companies

ART. 101 TFEU and the implicit requirement of two or more independent undertakings.

A plurality of undertakings still exists in the case of a group?

Different legal personality vs single economic entity

Formal independence vs substantial dependence

The double relevance of the problem

The existence of either two firms, or just one, may have a double relevance in competition law:

• (in case of an agreement between the two entities) as to the qualification of the agreement as

relevant under article 101 TFEU

• (in case of a practice materially adopted by the subsidiary in the market) as to the decision

whether the parent company is also liable for the infringement of competition law materially done

by one of its subsidiaries.

What about agreements between companies of the same group?

Two companies belonging to the same corporate group are considered as one undertaking:

1. if they form an economic unit within which the subsidiary has no real freedom to determine its

course of action on the market, AND SO

2. if the agreements or practices concerned may be seen as mere internal allocation of tasks,

such as among divisions of one entity.

How to prove the lack of indipendence?

Sometimes you have the “smoking gun”, documents where the subsidiary refers to its own policy

as the result of the decisions of parent company.

But various other factors may also create a presumption of the lack of independence:

sharing of directors

• sharing of premises

• power to appoint and dismiss officers

• power to approve capital expenditure

• shareholders’s agreements

• vertical integration of activities

• single reporting system

These are economic, organizational and legal links.

7

Some cases

The total ownership

the influence of the parent company is presumed

• the presumption is rebuttable, by proving not to have received any instruction from the parent

• company.

The joint ownership by more legal persons

the existence of an agreement between the joint venture and its founders depends on the mutual

• independence of the latter ones

The agreement between A and B, implemented by C, which is subsidiary of A and does not know

there is no need to impute the knowledge or will of one entity to another, because they are one

• and the same.

Agreements and groups of companies: a (temporary) balance

If two undertakings are not considered independent, but belonging to the same single economic

entity, Article 101 TFEU will not apply.

So it has no relevance under EU competition law? Surely it has no relevance under Article 101

TFEU. But this conclusion may change if the conditions set out in Article 102 are met.

Another case of (likely) lack of independence

The principal/agent relationship is that if the agent does not decide its market conduct

indipendently, how can we consider the agreements and contracts between it and the principal as

agreements between two firms?

How to prove the (lack of) independence?

Some factors which may be relevant:

exclusivity/non exclusivity of the agency relationship

• qualification given by the parties/by the law which is applicable to the agency contract

The main indicator is the risk which is borne by the agent.

Lecture 6: Agreements , decisions or concerned practices

The actual, limited, relevance of the distinction among the three cases:

both in theory: the function of the 3 figures is to determine the scope of application of the same

discipline

and in practice: the notion of agreement is understood so widely by the case law, that the

difference with the “concerted practice” becomes very light.

This is a restrictive agreement and, in any case a concerted practice.

The list in article 101 (1) TFEU is intended to apply to all collusion between undertakings, whatever

the form it takes. There is continuity between the cases listed. The only essential thing is the

distinction between independent conduct, which is allowed, and collusion, which is not, regardless

of any distinction between types of collusion.

And collusion occurs in any case of cooperation whereby two or more independent undertakings:

expressed their joint intention to conduct themselves in a specific way on the market, OR IN ANY

• CASE

adopted a given conduct without having the uncertainty as to their (current or future) behavior.

• 8

A functional approach: every case in which the parties substitute the risk of competition with the

Here is the reason of a non formalistic reading of the 3 cases.

Agreements

It is a wider notion, than the corresponding one, generally used in private law

Agreement: any expression of wills of at least two independent undertakings, regardless of their

binding or enforceable effects.

Some cases:

binding and enforceable contracts (also promise of agreements, as well as framework

• agreements)

expired contracts (when the parties still adhere to them)

• LOI, gentlemen’s agreements, other unenforceable contracts, etc.

• the use of anticompetitive terms and conditions in sales invoices by one party, and their

• acceptance and compliance by the other party

the delicate issue of mere unilateral proposals, tacitly accepted by the other party

When an agreement becomes relevant for CL?

We have to answer at these questions: when is it entered into? and when it produces its

anticompetitive effects?

It depends:

for the opening of a procedure for infringement, the first..

• for the assessment of the gravity of the behavior, the second..

Concerted practices

“conscious coordination of two or more undertakings, with harm to competition”

Therefore two requirements:

1. a contact among the parties, which permits the cancellation, or in any case the reduction, of

any uncertainty about future behavior (periodical meetings, any exchange of information)

2. the following adoption of parallel conducts

The problem of (mere) parallel conducts

Parallel conducts are often a signal of the existence of a concerted practice, but they also may be

intended as the result of some rational decisions taken by single independent market players.

So what about those “mere” parallel conducts (with no evidence of previous contracts among the

parties?)

What is material is whether the parallel conducts:

create market conditions which are not equivalent to that produced in an ordinary competitive

• context

consolidate and fix market power of the firms concerned without any relevance for the actual

• choice of the other market players

When those two conditions are not met, the parallel conducts are likely the effect of ordinary

competition.

Decision of association of undertakings

Any decision of any association, organization, committee pf firms which, by expressing a general

will in the interest of a group or of a category, may induce a coordinate behavior of the

undertakings concerned, regardless of the binding or not-binding nature of the effects:

binding decisions

• 9

reccommendations

• expression of will by firms adhering to (even temporary) association of firms

The proof of restrictive agreements

Sometimes the authorities have the text of either the agreements, or the decision (because it is

public or has been found during an inspection).

Generally the parties try to destroy any evidence, or modify the documental description of the facts

(false minutes, false subjects of the meeting, altered names and data, etc.)

How to prove the agreement, then?

1. leniency programs

2. (but in any case) evidence grounded on clues, which have to be objective, permanent and

consistent (so called narrative congruence).

Lecture 7: Object and Effect

Object: the same concept as under private law? (i.e. what each party had the duty to do in order to

comply with the contract)

Effect: the same concept as the “juridical effects” of the contract under private law? (i.e. which

setting of their respective juridical situations the parties want to get)

We might think to use the concepts of object and effect as under private law for agreements but

what about those concepts in the case of concerted practices or decisions of association of

undertakings?

In these cases we don’t have to think about object and effect in technical sense, because there is a

need for a functional interpretation of the concepts and the need for an economic view of the

concepts.

So in these cases we have to think at the object as the natural and objective attitude of a practice

of restricting competition, i.e. price fixing, markets or customers partitioning, output or sales limiting

(so called “per se restrictions” and “hardcore restrictions”).

And the effect as the anticompetitive consequences that a practice actually had in the market

concerned (even if it doesn’t have an objective attitude in that sense).

The ascertaining of the object

A global assessment of:

the content of the provisions of the agreement/ the practice/ the decision

• the aims and objectives

• the economic and legal context

The ascertaining of effect

A counterfactual analysis of:

the relevant market

• the number (and size) of players in that market

• the degree of saturation

• the effects of the considered practice on the business interests of third parties

• 10

They can seem to be quite similar but we can say that the object may be considered as the

potential effect while the effect is the actual one. And the potential effect is referred to the potential

effect on the competition as such.

Alternative, non cumulative conditions:

A. if the agreement has an anticompetitive object, we do not need to prove the antic. effects

B. we must consider the effects when the object is not by nature anticompetitive.

But really for this kind of agreement the actual effect has no relevance?

Actually they have some relevance in the sense of assessment of gravity, implementation of a fine

(if CL is publicy enforced) or in sense of assessment of gravity, restoration of damages (if CL is

privately enforced).

Object or effect: a further relevance

The appreciability of the restriction

A. agreements which are restrictive BY OBJECT are ALWAYS relevant under EU competition law

B. agreements which are restrictive BY EFFECT are relevant under EU competition law ONLY IF

the market power of the firms concerned is significant (so called de minims doctrine).

So, if an agreement doesn’t have an anticompetitive object a mere limitation of individual economic

freedom is not enough neither a minimal anticompetitive effect on the competitive structure of the

market is enough, but:

an appreciable, and significant, modification of the competitive structure of the market is needed

• the agreement must be able to alter not occasionally the competition in a given market

Commission Notice 2014/C291/01

Quantitative thresholds which detect firms whose agreements are presumed to be unrelevant.

Thresholds defined on the basis of three joint criteria:

agreements which are antic. by their object/ by their effect

• horizontal agreements/ vertical agreements

• market power

Agreement by object/by effect

If an agreement has as its object the prevention, restriction pr distortion on competition constitutes

an appreciable restriction of competition, Commission Notice 2014/C291 doesn’t apply.

Because CN applies to agreements which are antic. by their effect.

Horizontal agreement (by effect)

Joint market share of ALL the firms concerned, in all the markets concerned, not exceeding the

10%.

Vertical agreements (by efect)

Market share of EACH of the firms concerned, in all the markets concerned, not exceeding the

15%.

The actual relevance of the de minims thresholds: no absolute inclusion (an agr. which is

above the thresholds may have non appreciable effects as well: CN 2014/C291/01,) and not

absolute at all (presumption of non appreciable effects IS NOT an exemption under art. 101, par.3,

TFEU). 11

Lecture 8: Agreements fixing prices - agreements limiting production

From the general prohibition to the specific cases

ART 101 TFEU, general prohibition and five specific cases

Clarity and flexibility, but the prohibition is one: the elements of the general prohibition into the

(concrete occurrence of the) specific cases:

is there an agreement? Or a concerted practice?

• was it entered into by undertakings?

• are those firms independent?

• is it anticompetitive by object or by effect?

The specific cases: a preliminary remark

Nothing in the text of article 101 TFEU makes exclusive reference to either horizontal or vertical

agreements, but, for the moment, we will consider them with exclusive reference to horizontal

ones.

Some classifications

Agreements may tend to:

to uniform the behavior of firms (same prices, same office hours, etc.)

• to distinguish the behavior of firms in order to make them complementary (market sharing,

• customer sharing, etc.)

to cooperate for some aspects (some advertising strategies, some distributor, etc.)

A) Fixing the prices

The prohibition’s reason is that free definition of prices is one of the most clear expression of

economic freedom (in a subjective view) and competition (in an objective view). Moreover trend to

a natural reduction of prices is one of the reasons why competition is the preferable economic

system (competition as a way to get consumer welfare).

Notion of agreement: conscious substitution of the risk of competition with the advantages of

cooperation.

Note 1: fixing means recommending, determining the conditions whereby to fix etc.

Note 2: no need that practices are identical.

In case law they were found to be an infringement of article 101, para. 1, lett. a, agreements.

1. fixing the sale (or purchase) prices

2. fixing the minimal prices

3. fixing the percentage of increase of price or of discounts

4. fixing the amount/the percentage of profit that every firm concerned may get

Other contractual clauses that may have an impact on the global price of goods and services

warranties

• aftersale services

• conditions fro payment

• transports and delivery costs

• 12

On one side efficiencies and economies of scale may generate positive effects on downstream

markets and consumers, so lower prices and better quality products or services.

On the other side some anticompetitive consequences may occur, depending on the market power

of members of the alliance in two relevant markets:

high power in purchasing market: the alliance can exert pressure on suppliers in order to

• condition their supply

high power in selling market: it may happen that the reduced price in purchasing market is not

• transferred to consumers

Horizontal Cooperation Guidelines by the Commission (2011/C11/01)

1. Joint purchasing arrangements restrict competition by object if they do not truly concern joint

purchasing, but serve as a tool to engage in a disguised cartel, that is to say, otherwise

prohibited price fixing, output limitation or market allocation.

2. Joint purchasing arrangements which don’t have as their object the restriction of competition

must be analyzed in their legal and economic context with regard to their actual and likely

effects on competition. The analysis of the restrictive effects on competition generated by a

joint purchasing arrangement must cover the negative effects on both the purchasing and

selling markets.

Again the recourse to thresholds

combined share market of the members of the alliance is UNDER the 15% in both markets. It is

• unlikely a restriction of competition.

combined share market of the members of the alliance is ABOVE the 15% in both markets. In

• this case some factors must be considered: concentration of the markets, number and strength

of suppliers, commonality of costs in the selling market.

B) Limiting or controlling production, or markets, or technical development, or investment

The prohibition reason is to avoid agreements which indirectly may help undertakings maintain a

given price level.

Production:

production quotas, market quotas etc.

• standardization of the product quality

• covenant not to produce a certain product at all

• agreed closing of the plants, also on a shift basis

• commitment not to establish new plants, or to enlarge/develop the existent ones

Markets:

common distributive networks (when the parties’ market share are relevant)

Technical development or investments:

• 13

Lecture 9

C) Sharing markets or sources of supply

The aims are:

to avoid that nay market is deprived by competition: within its own market, each firm would be

• monopolist

to avoid obstacles to the creation of an internal market within the Union

- On a geographical basis

- On a customers’ basis: stable allotment of customers to each firm and temporary moratorium of

competitive pressure with reference to given customers

- On products/services’ basis: division of tenders (and/or lots)

- On suppliers’ basis

D) Applying dissimilar conditions to equivalent transactions (so called discriminatory

practices)

The aim:

“thereby placing them at a competitive disadvantage” (ART.101 TFEU)

• an implicit requirement: “without a cause” (see ART. 2 Italian Law No. 287/90)

Unequal treatment with a cause

Actual differences as to either the products or the consideration:

differences as to the quantity of products

• differences as to the production costs of the products

• differences as to the payment terms

And without a cause

Unequal treatment which is conditional to a commitment about future (commitment to purchase

• exclusively from suppliers of a given group/association in the future)

Unequal treatment which is grounded on the identity/the category of the customers (firms which

• are customers, but, in other markets, competitors)

A borderline case: the collective boycott

Collective refusal of bargaining with a player to punish those firms that don’t adhere to another

restrictive agreement and to divide domestic markets

E) Making the conclusion of contracts subject to other contracts (so called tying contracts)

Ordinarily we have frequent practice by a dominant firm, but in some cases also by means of an

agreement

The aims:

1. to avoid any limitation of freedom of choice of customers

2. to avoid the transfer of a condition of power in a given market to another one

The explicit negative condition

Products and services concerned must not be connected by nature or by commercial usage (i.e.

mobile phones and battery)

The implicit positive condition

The possession of a relevant market power by the undertakings which entered into the agreement

14

Some cases

air cargo services and other land-transport services

• loans by banks and insurance policies covering the risks connected with the loans

• block purchase of several films distributed by the same studio (multiplex)

The exemptions

1. Restrictive agreements between prohibition and exemptions (ART. 101, $1 and 3 TFEU) 4 requirements to be met for the grant of an exemption, 2 positive and 2 negative: A. improvement of production or distribution of goods, promotion of economic progress B. fair share for consumers (price reduction, increase in quality of the products, etc) C. (provided that they are not) restrictions which are not indispensable to the attainment of objective sub A and B D. (provided that they are not) restrictions which eliminate competition in respect of a substantial part of the products in question Individual exemption • Until Regulation 1/03: notification of the agreement by the parties to the Commission, which granted the exemption • After Regulation 1/03: So called self-assessment system. The undertakings self-assess the existence of the four conditions set out in Article 101,$3, TFEU.

The control by the competent authorities is just possible and, in any case, delayed. A procedure will

be opened if any of the authority entrusted with the enforcement of competition law suspects an

infringement of article 101 TFEU.

In both the past and the current system:

1. the burden of proof in any case ON THE PARTIES (that agreement meets the 4 conditions set

out by article 101, \$3, TFEU)

2. the exemption is in any case INDIVIDUAL, because during the procedure nothing else but the

parties’ agreement (its content, its context) will be taken into consideration

Some Guidelines from European Commission

Commission Guidelines on the applicability of Article 101 to horizontal cooperation agreements

• Commission Guidelines on vertical restraints

• Commission Guidelines on the application of Article 81 of the EC Treaty to technology transfer

• agreements

Block exemptions

1. the effects of block exemptions on the burden of the proof on the parties: NOT that the

agreement meets the 4 requirements BUT that it falls within the scope of application of the

block exemption

2. If an agreement doesn’t fall within a block exemption—> general rule of article 101 TFEU

(single exemption) applies

Block exemption regulation for vertical agreements

• Block exemption regulation for research and development agreements

• Block exemption regulation for specialization agreements

• 15

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DETTAGLI
Corso di laurea: Corso di laurea magistrale in international business an economics
SSD:
Università: Pavia - Unipv
A.A.: 2017-2018

I contenuti di questa pagina costituiscono rielaborazioni personali del Publisher zini.matteo di informazioni apprese con la frequenza delle lezioni di Competition law e studio autonomo di eventuali libri di riferimento in preparazione dell'esame finale o della tesi. Non devono intendersi come materiale ufficiale dell'università Pavia - Unipv o del prof Petroboni Giovanni.

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