EC Competition Law and Policy

191 Pages·2002·1.295 MB·English

by  Albertina Albors-Llorens

EC Competition Law and Policy

EC Competition Law
and Policy
Albertina Albors-Llorens
Published by
Willan Publishing
Culmcott House
Mill Street, Uffculme
Cullompton, Devon
EX15 3AT, UK
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© Albertina Albors-Llorens 2002
All rights reserved; no part of this publication may be reproduced, stored in a
retrieval; system, or transmitted in any form or by any means, electronic,
mechanical, photocopying, recording or otherwise without the prior written
permission of the Publishers or a licence permitting copying in the UK issued by
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9HE.
First published 2002
ISBN 1-903240-74-3 Paperback
ISBN 1-903240-75-1 Hardback

British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library.
Printed and bound by T.J. International, Padstow, Cornwall
Contents v
Contents
Preface vii
Table of EC Commission decisions ix
Table of cases xi
Table of EC Treaty provisions xxiii
Table of EC legislation xxv
Chapter 1: The foundations of EC competition law 1
Introduction 1
The EC Treaty provisions in competition 2
The scope of application of Articles 81 and 82 EC 4
The two levels of enforcement of EC competition
law: the roles of the Commission, the natural

courts and national authorities 5
The aims of EC competition policy 6
Community competition law and national law 8
The common elements in articles 81 and 82 EC 10
Chapter 2: Anti-competitive agreements, decisions
and concerted practices: Article 81 EC 16
Introduction 16
Article 81(1) EC: The basic prohibition on anti-
competitive agreements, decisions by associations
of undertakings and concerned practices 18
vi EC Competition Law and Policy
Article 81(2) EC: the sanction 46
Article 81(3) EC: exemptions 46
The ‘rule of reason’ in EC competition law 68
Chapter 3: Abuses of dominant position by one or more
undertakings: Article 82 EC 74
Introduction 74
The prohibition on abuses of dominant
position by one or more undertakings 75
Chapter 4: The enforcement of EC competition law 113
Introduction 113
The present system – enforcement at
community level: Regulation 17/62 114
Enforcement at national level: national courts
and national authorities – the present system 145
The new system of enforcement of competition
law: the White Paper and the Draft Regulation 151
Concluding remarks 157
Index 159
Preface vii
Preface
Despite the phenomenal growth of EC competition law in recent years,
there are plenty of excellent books on the market that cover exhaustively
the intricacies of this complex area. This book aims to provide a short and
accessible analysis of Articles 81 and 82 EC, the two core competition
provisions in the EC Treaty, and their system of enforcement. It also
focuses on two fundamental changes during the past two years that have
the potential to alter dramatically the complexion of EC competition law
as it has stood for over thirty years. These are the new system of block
exemption regulations for vertical and horizontal agreements and the
proposal for a fully decentralised system of enforcement of Articles 81 and
82 EC.
The book is divided into four chapters. Chapter 1 considers the
foundations of EC competition law. It includes an overview of the aims
and configuration of EC competition law and examines contentious
issues, such as those arising from the relationship between EC and
national competition law, and the extraterritorial jurisdiction of the
Commission in the application of Articles 81 and 82 EC. Chapter 2

analyses the structure of Article 81 EC. It surveys the case law of the
Community judicature and the decisions of the Commission in an attempt
to establish a coherent thread in their policy on collusive practices. This
chapter discusses in detail the process of reform of the Commission’s
policy on vertical restraints, initiated in 1997, and which culminated, in
December 1999, in the adoption of the umbrella block exemption on
vertical restraints. The new block exemption regulations for horizontal
agreements are also briefly discussed. Chapter 3 considers Article 82 EC
and develops its essential elements – in particular, the notions of
dominance, abuse and collective dominance, taking into account recent
developments in the case law. Finally, Chapter 4 examines the enforcement
of EC competition law. Important changes are taking place in this field,
viii EC Competition Law and Policy
following the Commission’s publication in April 1999 of its White Paper
on enforcement and in September 2000 of a Draft Regulation that, if
approved, will replace Regulation 17/62. The chapter is therefore divided
into two parts that consider, first, the current system of enforcement and
then the one suggested by the Commission.
This book would have never seen the light of day without the help of
many people. I began to teach competition law with Elizabeth Freeman;
she has always been a wonderful friend and guide to me. I am also very
grateful to Rosa Greaves, who has always encouraged me, providing
extremely helpful ideas and suggestions, and to Paul Taylor, who read the
manuscript and made pertinent and useful comments. Thanks are due to
Rosemary Graham for her editorial assistance, to Kirsty Allen, Catherine
Barnard, Joanne Scott and Stephanie Palmer for their unfailing support,
and to Christine Gray, for being such a kind and loyal friend. Finally, I am
enormously grateful to Brian Willan for his help and understanding
during the preparation of this book, which was so frequently interrupted
by my teaching commitments.
My greatest debt, however, is to my parents, to my husband Pantelis,
and to our son Alexander, whose unconditional love and patience have
helped me to see this book through. I dedicate it to Pantelis’s parents,
Nicholas and Lily Fanouraki, in thanks for their continuous support.
Albertina Albors-Llorens
April 2002
Table of Commission Decisions ix
Table of EC Commission decisions
68/376/EEC (Re Rieckermann and AEG- 79/934/EEC (Atka v. BP Kemi/Danske
Elotherm) OJ [1968] L 276/25, [1968] Spritfabrikker) OJ [1979] L286/32,
CMLR D78 40 [1979] 3 CMLR 684 44
69/240/EEC (Quinine cartel) OJ [1969] L 80/1334/EEC (Re Italian Cast Glass) OJ
192/5, [1969] CMLR D41 40 [1980] L 383/19, [1982] 2 CMLR 61
(Dyestuffs) OJ [1969] L 195/11, [1969] 42
CMLR D23 25, 26 82/756/EEC (Fédération Nationale de
70/332/EEC (Re Kodak) OJ [1970] L l’Industrie de la Chaussure de France) OJ
147/24, [1970] CMLR D19 45 [1982] L 319/12, [1983] 1 CMLR
71/23/EEC (Re German Ceramic Tiles) OJ 575 120, 121
[1971] L 10/15, [1971] CMLR D6 44 83/400/EEC (Windsurfing International) OJ
71/224/EEC (GEMA) OJ [1971] L 134/15, 1983] L 229/1, [1984] 1 CMLR 1 45
[1971] CMLR D35 92, 119, 129, 141, 84/282/EEC (Polistil/Arbois) OJ [1984] L
143 136/9, [1984] 2 CMLR 594 36
72/403/EEC (Re Pittsburgh Corning Europe) 84/380/EEC (Re Synthetic Fibres) OJ [1984]
OJ [1972] L 272/35, [1973] CMLR L 207/17, [1985] 1 CMLR 787 43
D2 45 84/405/EEC (Re the Zinc Producer Group)
73/332/EEC (Re Deutsche Philips) OJ OJ [1984] L 220/27, [1985] 2 CMLR
[1973] L 293/40, [1973] CMLR 108 42
D241 132 85/74/EEC (Peroxygen Products) OJ [1985]
75/75/EEC (General Motors) OJ [1975] L L 35/1, [1985] 1 CMLR 481 36
29/14, [1975] 1 CMLR D20 78, 87, 89, 85/609/EEC (AKZO) OJ [1985] L 374/1,
111 [1986] 3 CMLR 273 125, 137
75/77/EEC (Re French and Taiwanese 86/398/EEC (Re Propylene cartel) OJ [1986]
Mushrooms) OJ [1975] L 29/26, [1975] L 230/1, [1988] 4 CMLR 347 23
1 CMLR D83 41 87/409/EEC (Sandoz) OJ [1987] L 222/
76/172/EEC (Re Bayer and Gist-Brocades) 28, [1989] 4 CMLR 628 28
OJ [1976] L 30/13, [1976] 1 CMLR 88/138/EEC (Hilti) OJ [1988] L 65/19,
D98 48 [1989] 4 CMLR 677 96
76/353/EEC (United Brands) OJ [1976] 88/501/EEC (TetraPak I) OJ [1988] L
L 95/1, [1976] 1 CMLR D28 7, 75, 272/27, [1990] 4 CMLR 47 96
77, 79, 82, 84–86, 89, 90, 92, 99, 111, 88/518/EEC (British Sugar) OJ [1988] L
132 284/41, [1990] 4 CMLR 196 83
77/327/EEC (BP) OJ [1977] L 117/1, [1977] 89/22/EEC (British Plasterboard) OJ [1989]
2 CMLR D1 100, 111 L 10/50, [1990] 2 CMLR 464 83, 87
78/68/EEC (Hugin) OJ [1978] L 22/23, 89/93/EEC (Italian Flat Glass) OJ [1989] L
[1978] 1 CMLR D19 77, 78, 105, 107 33/44, [1990] 4 CMLR 535 108