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EC Competition Law and Policy PDF

191 Pages·2002·1.295 MB·English
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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 Tel: +44(0)1884 840337 Fax: +44(0)1884 840251 e-mail: [email protected] Published simultaneously in the USA and Canada by Willan Publishing c/o ISBS, 5824 N.E. Hassalo St, Portland, Oregon 97213-3644, USA Tel: +001(0)503 287 3093 Fax: +001(0)503 280 8832 © 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 the Copyright Licensing Agency Ltd, 90 Tottenham Court Road, London W1P 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

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