Competition (Articles 101 and 102 TFEU)

Question 1

‘Agreements’ include informal agreements.

Answer 1

Quinine Cartel

Question 2

‘Agreements’ include both horizontal and vertical agreements.

Answer 2

Consten and Grundig

Question 3

Decisions by associations of undertakings/trade associations fall within the scope of Art 101.

Answer 3

IAZ

Question 4

Regulatory rules promulgated by professional bodies fall within the scope of Art 101 unless they are reasonable.

Answer 4

Wouters

Question 5

What is the definition of a concerted practice?

Answer 5

Concerted practices fall short of even informal agreements but involve businesses knowingly substituting practical cooperation between them for risks of competition (Dyestuffs).

Question 6

Presumptions of concerted practice arise in what two situations?

Answer 6

(a) Where there is contact between parties and subsequent similar practice; (b) parallel conduct (Dyestuffs; Woodpulp).

Question 7

Which case concerns supply substitutability?

Answer 7

Continental Can

Question 8

Which case concerns demand substitutability?

Answer 8

United Brands

Question 9

RPM may be very narrow.

Answer 9

Hugin

Question 10

The default RGM is the whole of the EU.

Answer 10

Hilti

Question 11

What factors might you take into account to determine the RGM?

Answer 11

Transportation costs; product characteristics (e.g. fragility); shipment patterns; or the location of plants (United Brands).

Question 12

Although the RGM may in fact be very small, it must constitute a substantial part of the market.

Answer 12

Stena Sealink (Holyhead)

Question 13

Save in exceptional circumstances, very large market shares will be in themselves evidence of dominance.

Answer 13

Hoffman-La Roche

Question 14

There is a rebuttable presumption of dominance if market share is 50% or more.

Answer 14

AKZO

Question 15

Shares below 35% are rarely dominant, but this may depend upon the structure of the market.

Answer 15

United Brands

Question 16

What additional factors can be taken into account to determine dominance?

Answer 16

If the market shares of competitors are low in comparison (United Brands); barriers to entry exist; the undertaking has been in a strong position over a long period of time (United Brands); the undertaking has a high level of financial and technological resources. Dominance is less likely if customers enjoy buyer power.

Question 17

Dominant firms have a special responsibility not to allow their conduct to impair undistorted competition on the common market.

Answer 17

Michelin

Question 18

What is an ‘abuse’?

Answer 18

(a) Where a dominant firm in a market engages in conduct that is intended to exploit its dominant position, or (b) the presence of a dominant firm weakens the degree of competition, hindering the maintenance or growth of that competition (Hoffman-La Roche)

Question 19

What are the two main types of abuse?

Answer 19

Exploitative practices (those which exploit persons dependent on an undertaking) and anti-competitive practices (those which impede competition by excluding competitors).

Question 20

Either object or effect are sufficient.

Answer 20

STM

Question 21

A network of similar agreements is more likely to distort competition than an isolated one.

Answer 21

Wilkin

Question 22

Article 101 is directly effective.

Answer 22

BRT

Question 23

NAOMI

Answer 23

Vertical 15%; Horizontal 10%; networks of agreements 5%. If there are hardcore restrictions, NAMOI will not apply.

Question 24

NAAT

Answer 24

Market share cannot exceed 5% AND for horizontal agreements, aggregate turnover must be less than 40 million euros and for vertical agreements turnover of the supplier must be less than 40 million euros. Hardcore restrictions do not invalidate NAAT but national competition authorities may still take action.

Question 25

Art 101(3) Exemption

Answer 25

Agreement must improve the production or distribution of goods or promote technical/economic progress and allow consumers a fair share of the resulting benefit. Agreement must not impose unnecessary conditions or afford the elimination of competition.

Question 26

What Treaty Article should be invoked to challenge a penalty issued by the Commission?

Answer 26

Article 263 TFEU

Question 27

Which Article of Regulation 1/2003 concerns information request?

Answer 27

Article 18; penalties for incorrect/misleading information under 18(2).

Question 28

Which Article of Regulation 1/2003 concerns interviews of consenting persons?

Answer 28

Article 19.

Question 29

Which Articles of Regulation 1/2003 concern investigations?

Answer 29

Articles 20 and 21, including dawn-raid procedures.

Question 30

What penalties can the Commission issue?

Answer 30

A fine of up to 10% of worldwide turnover; third parties affected by the breach can sue for damages in national courts because Article 101 has direct effect per SBT; foreign third parties may also sue in UK national courts (Garden Cottage Foods; Crehan).

Question 31

De minimis rule.

Answer 31

Volk

Question 32

Joint dominance.

Answer 32

Italian Flat Glass

Question 33

Examples of unfair pricing abuse.

Answer 33

United Brands and AKZO.

Question 34

Examples of refusal to supply.

Answer 34

United Brands and Hugin

Question 35

Unjustifiable price discrimination.

Answer 35

United Brands

Question 36

Tying

Answer 36

Hilti

Question 37

Articles 101 and 102 have direct effect

Answer 37

BRT