collusion

Question 1

collusion meaning

Answer 1

The main concern is that a group of undertakings will conspire or collude and, in effect, will collectively carry
the same threat to competition as a monopolist.

agreements or concerted practices by undertakings and decisions by associations of undertakings

e.g. Vitamin market – 10 years lasting crisis where companies divided countries’ markets among themselves (horizontal)

Question 2

legal framework

Answer 2

• art 101
• Block exemption regulations for certain categories of restrictive agreements
• horizontal and vertical guidelines
• de minimis notice

Question 3

agreement

Answer 3

concurrence of wills - meeting of minds (!!), bindingness not required

Question 4

concerted practice

Answer 4

not quite an agreement, co-ordination on a level lower than agreement (nobody really knows what it means)
no meeting of minds, rather an information exchange so there’s no concurrence of will (e.g. instead of meeting and agreeing on something you inform the other competitor about your plan, you exchange sensitive information - ‘i will raise my prices, idk how about you’)
example: gas stations lowering their prices

Question 5

decisions of associations of undertakings

Answer 5

goal: fining both the trade association and its members
broad understanding of decision

example: association of all the industrial property agencies in Spain

Question 6

on which levels can collussion happen?

Answer 6

horizontal and vertical

Question 7

horizontal behaviour

Answer 7

between undertakings on the same level of the market, manufacturing the same product (e.g. two car companies)

Question 8

vertical behaviour

Answer 8

undertakings operating on different levels of the market (e.g. distributor and retailer)

Question 9

single and continuous infringement

Answer 9

BASF v Commission case

in competition law cartels go on for a long period of time, not on every meeting all the companies are involved

so a company doesn’t have to participate in every meeting to be held liable, you can participate in the general concept

Question 10

Scania case

Answer 10

conditions for single and continuous infringement
1. there is a plan
2. the undertaking intentionally contributes to that plan
3. the undertaking is aware that there’s offending conduct happening (even if it doesn’t participate directly)

Question 11

cartel facilitation

Answer 11

Treuhand case

providing support to have the cartel agreement work (providing meeting rooms, helping with distributing the price list etc.)
= even if you yourself aren’t directly a cartel, by faciliating one’s development you can be liable as cartel faciliator

Question 12

restriction of competition

Answer 12

any restriction of the usual independence of undertakings acting on the market
by object vs by effect

Question 13

restriction by object

Answer 13

the behaviour is BY THE NATURE anti-competitive (no need to prove any kind of effects on the market)

Question 14

restriction by effect

Answer 14

examination of the actual or potential effects
= BUT FOR counterfactual test

Question 15

counterfactual test

Answer 15

• hypothetical because we don’t know for sure what would have happened without the cartel as it actually happened
• how would the market operate without the cartel?

Question 16

Wood Pulp case

Answer 16

how can you have an effect in MS if the cartels are located outside the EU?
North America companies conduct a cartel which has effect on MS
1) implementation doctrine: if the cartel has been implemented in the EU but the cartels meet outside, it still has effect on the MS

Question 17

Intel case

Answer 17

2) any qualified effects are sufficient
the agreement concluded outside of EU can still have effect on MS market

Question 18

5th condition of collusion which can’t be found in the treaty

Answer 18

appreciability - de minimis treshold of collusive behavior

distinguishing collusive behavior of minor importance
< 10% horizontal
< 15% vertical
case: Völk

Question 19

exemptions

Answer 19

a) written
b) unwritten

Question 20

unwrittten exemptions

Answer 20

1. state compulsion doctrine
   Deutsche Telekom
   not an anticompetitive conduct if it’s required by national legislation
2. ancilliary restraints
   Wouters

Question 21

Wouters case

Answer 21

unwritten exemption base

dutch bar council set a rule saying that if you wanna form a partnership as a lawyer, only lawyers can be part of it (ensuring proper legal proffession)
Q: Art 101 not infringed if the rule was necessary to ensure proper practice of legal proffession?
YES if conditions are met:
1. no restriction by object
2. legitimate objective in the general interest
3. suitability
4. necessity

Question 22

individual exemption

Answer 22

art 101(3)
cumulative conditions (2+, 2-)

Question 23

block exemption regulation

Answer 23

creates safe harbor for common types of collusive behavior
types: e.g. horizontal and vertical, motor vehicle etc.