ec competition law and policy albertina albors

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EC Competition Law and Policy


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EC Competition Lawand Policy

Albertina Albors-Llorens


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Published by

Willan PublishingCulmcott House

Mill Street, UffculmeCullompton, DevonEX15 3AT, UKTel: +44(0)1884 840337Fax: +44(0)1884 840251e-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, USATel: +001(0)503 287 3093Fax: +001(0)503 280 8832

Albertina Albors-Llorens 2002

All rights reserved; no part of this publication may be reproduced, stored in aretrieval; system, or transmitted in any form or by any means, electronic,

mechanical, photocopying, recording or otherwise without the prior writtenpermission of the Publishers or a licence permitting copying in the UK issued bythe Copyright Licensing Agency Ltd, 90 Tottenham Court Road, London W1P9HE.

First published 2002

ISBN 1-903240-74-3 Paperback

ISBN 1-903240-75-1 Hardback

British Library Cataloguing-in-Publication DataA catalogue record for this book is available from the British Library.

Printed and bound by T.J. International, Padstow, Cornwall


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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 1Introduction 1The EC Treaty provisions in competition 2The scope of application of Articles 81 and 82 EC 4The two levels of enforcement of EC competition

law: the roles of the Commission, the naturalcourts and national authorities 5The aims of EC competition policy 6Community competition law and national law 8The common elements in articles 81 and 82 EC 10

Chapter 2: Anti-competitive agreements, decisionsand concerted practices: Article 81 EC 16Introduction 16

Article 81(1) EC: The basic prohibition on anti-competitive agreements, decisions by associationsof undertakings and concerned practices 18


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Article 81(2) EC: the sanction 46Article 81(3) EC: exemptions 46The rule of reason in EC competition law 68

Chapter 3: Abuses of dominant position by one or moreundertakings: Article 82 EC 74Introduction 74The prohibition on abuses of dominantposition by one or more undertakings 75

Chapter 4: The enforcement of EC competition law 113Introduction 113The present system enforcement at

community level: Regulation 17/62 114Enforcement at national level: national courtsand national authorities the present system 145The new system of enforcement of competitionlaw: the White Paper and the Draft Regulation 151Concluding remarks 157

Index 159


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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 exhaustivelythe intricacies of this complex area. This book aims to provide a short andaccessible analysis of Articles 81 and 82 EC, the two core competitionprovisions in the EC Treaty, and their system of enforcement. It alsofocuses on two fundamental changes during the past two years that havethe potential to alter dramatically the complexion of EC competition law

as it has stood for over thirty years. These are the new system of blockexemption regulations for vertical and horizontal agreements and theproposal for a fully decentralised system of enforcement of Articles 81 and82 EC.

The book is divided into four chapters. Chapter 1 considers thefoundations of EC competition law. It includes an overview of the aimsand configuration of EC competition law and examines contentiousissues, such as those arising from the relationship between EC andnational competition law, and the extraterritorial jurisdiction of the

Commission in the application of Articles 81 and 82 EC. Chapter 2analyses the structure of Article 81 EC. It surveys the case law of theCommunity judicature and the decisions of the Commission in an attemptto establish a coherent thread in their policy on collusive practices. Thischapter discusses in detail the process of reform of the Commissionspolicy on vertical restraints, initiated in 1997, and which culminated, inDecember 1999, in the adoption of the umbrella block exemption onvertical restraints. The new block exemption regulations for horizontalagreements are also briefly discussed. Chapter 3 considers Article 82 EC

and develops its essential elements in particular, the notions ofdominance, abuse and collective dominance, taking into account recentdevelopments in the case law. Finally, Chapter 4 examines the enforcementof EC competition law. Important changes are taking place in this field,


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following the Commissions publication in April 1999 of its White Paperon enforcement and in September 2000 of a Draft Regulation that, ifapproved, will replace Regulation 17/62. The chapter is therefore dividedinto 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 verygrateful to Rosa Greaves, who has always encouraged me, providingextremely helpful ideas and suggestions, and to Paul Taylor, who read themanuscript and made pertinent and useful comments. Thanks are due toRosemary Graham for her editorial assistance, to Kirsty Allen, CatherineBarnard, Joanne Scott and Stephanie Palmer for their unfailing support,

and to Christine Gray, for being such a kind and loyal friend. Finally, I amenormously grateful to Brian Willan for his help and understandingduring 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 havehelped 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-LlorensApril 2002


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Table of Commission Decisions ix

68/376/EEC (Re Rieckermann and AEG-Elotherm) OJ [1968] L 276/25, [1968]CMLR D78 40

69/240/EEC (Quinine cartel) OJ [1969] L192/5, [1969] CMLR D41 40

(Dyestuffs) OJ [1969] L 195/11, [1969]CMLR D23 25, 26

70/332/EEC (Re Kodak) OJ [1970] L147/24, [1970] CMLR D19 45

71/23/EEC (Re German Ceramic Tiles) OJ[1971] L 10/15, [1971] CMLR D6 44

71/224/EEC (GEMA) OJ [1971] L 134/15,[1971] CMLR D35 92, 119, 129, 141,

143

72/403/EEC (Re Pittsburgh Corning Europe)OJ [1972] L 272/35, [1973] CMLRD2 45

73/332/EEC (Re Deutsche Philips) OJ[1973] L 293/40, [1973] CMLRD241 132

75/75/EEC (General Motors

) OJ [1975] L29/14, [1975] 1 CMLR D20 78, 87, 89,

111

75/77/EEC (Re French and TaiwaneseMushrooms ) OJ [1975] L 29/26, [1975]1 CMLR D83 41

76/172/EEC (Re Bayer and Gist-Brocades)OJ [1976] L 30/13, [1976] 1 CMLRD98 48

76/353/EEC (United Brands) OJ [1976]L 95/1, [1976] 1 CMLR D28 7, 75,77, 79, 82, 8486, 89, 90, 92, 99, 111,

13277/327/EEC (BP) OJ [1977] L 117/1, [1977]

2 CMLR D1 100, 11178/68/EEC (Hugin) OJ [1978] L 22/23,

[1978] 1 CMLR D19 77, 78, 105, 107

79/934/EEC (Atka v. BP Kemi/DanskeSpritfabrikker) OJ [1979] L286/32,[1979] 3 CMLR 684 44

80/1334/EEC (Re Italian Cast Glass) OJ[1980] L 383/19, [1982] 2 CMLR 61

42

82/756/EEC (Fdration Nationale delIndustrie de la Chaussure de France) OJ[1982] L 319/12, [1983] 1 CMLR

575 120, 12183/400/EEC (Windsurfing International) OJ

1983] L 229/1, [1984] 1 CMLR 1 45

84/282/EEC (Polistil/Arbois) OJ [1984] L136/9, [1984] 2 CMLR 594 36

84/380/EEC (Re Synthetic Fibres) OJ [1984]L 207/17, [1985] 1 CMLR 787 43

84/405/EEC (Re the Zinc Producer Group)OJ [1984] L 220/27, [1985] 2 CMLR

108 4285/74/EEC (Peroxygen Products) OJ [1985]

L 35/1, [1985] 1 CMLR 481 3685/609/EEC (AKZO) OJ [1985] L 374/1,

[1986] 3 CMLR 273 125, 13786/398/EEC (Re Propylene cartel) OJ [1986]

L 230/1, [1988] 4 CMLR 347 23

87/409/EEC (Sandoz) OJ [1987] L 222/28, [1989] 4 CMLR 628 28

88/138/EEC (Hilti) OJ [1988] L 65/19,[1989] 4 CMLR 677 96

88/501/EEC (TetraPak I) OJ [1988] L272/27, [1990] 4 CMLR 47 96

88/518/EEC (British Sugar) OJ [1988] L

284/41, [1990] 4 CMLR 196 8389/22/EEC (British Plasterboard) OJ [1989]

L 10/50, [1990] 2 CMLR 464 83, 8789/93/EEC (Italian Flat Glass) OJ [1989] L

33/44, [1990] 4 CMLR 535 108

Table of EC Commission decisions


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89/512/EEC (Dutch banks) OJ [1989]L 253/1, [1990] 4 CMLR 768 30

90/299/ECC (Solvay) OJ (1991) L 152/21, (1994) 4 CMLR 645 106

90/645/EEC (Bayer) OJ [1990] L 351/

46, [1992] 4 CMLR 61 28, 11991/297/EEC (Re Soda Ash) OJ [1991]

L 152/1, [1994] 4 CMLR 454 7, 43,83, 87, 124

92/96/EEC (Re Arssupol) OJ [1992] L37/16, [1993] 4 CMLR 338 49

92/204/EEC (Dutch building cartel) OJ[1992] l 92/1, [1993] 5 CMLR135 129

92/213/EEC (Britsh Midland Airwarys v.Aer Lingus) OJ [1992] L 96/34, [1993] 4CMLR 596 87

92/521/EEC (Re Distribution of packagetours during the 1990 World Cup) OJ[1992] L 326/31, [1994] CMLR 25311

92 (B&I Line plc v. Sealink Harbours) [1992] 5CMLR 255 103

94/894/EEC (Eurotunnel) OJ [1994] L354/66, [1995] 4 CMLR 801 133

94/19/EC (Sea Containers v. Stena Sealink)OJ [1994] L 15/8, [1995] 4 CMLR

84 103

94/296/EC (Stichting Baksteen) OJ [1994] L131/15, [1995] 4 CMLR 646 116, 117

97/624/EEC (Re Irish Sugar) OJ [1997] L258/1, [1997] 5 CMLR 666 84, 87,

94

98/273/EEC (Re Volkswagen and others)OJ [1998] L 124/60, [1998] 5 CMLR

333 28, 36, 4499/271/EC (Re Greek Ferries) OJ [1999] L

109/24, [1999] 5 CMLR 47 20, 322000/12/EC (Re The 1998 Football World

Cup) OJ [2000] L 5/55, [2000] 4 CMLR

963 7, 912000/74/EC (Virgin/British Airways) OJ

[2000] L 30/1, [2000] 4 CMLR 999 952000/117/EC (Re FEG and TU) OJ

[2000] L 39/1, [2000] 4 CMLR1208 40


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Table of cases xi

ACF Chemiefarma v. Commission (Case41/69) [1970] ECR 661 18

Adams v. Commission (Case 145/83)[1985] ECR 3539, [1986] 2 CMLR506 12 4, 144

AEG and Telefunken v. Commission(Case 107/82) [1983] ECR 3151,[1984] 3 CMLR 325 27

Ahlstrm and others v. Commission

(Woodpulp I) (Joined Cases 89/95,104/85, 114/85, 116117/85, 125129/85) [1988] ECR 5193, [1988] 4CMLR 901 13

Ahlstrm and others v CMS (WoodpulpII) Joined cases C-114/85 and C-125/85, C-89/85, C-104/85, C-116117/85 and C-125129/85 [1993] ECRI-1307, [1993] 4 CMLR 407 26, 123,124

Ahmed Saeed v. Zentrale zur

Bekmpfung Unlauteren Wettwerbs(Case 66/86) [1989] ECR 803, [1990]4 CMLR 102 41, 91

AKZO v. Commission (Case 53/85)[1986] ECR 1965 125 , 137

AKZO v. Commission (Case C-62/86)[1991] ECR I-3359, [1993] 5 CMLR215 98 , 123

Alsatel v. Novasam (Case 247/86)[1988] ECR 5987, [1990] 4 CMLR434 75 , 83

AM & S v. Commission (Case 155/79)

[1982] ECR 1575, [1982] 2 CMLR264 122

ANCIDES v. Commission (Case 43/85)

[1987] ECR 3131, [1988] 4 CMLR821 125

Anne Marty v. Este Lauder (Case 37/79) [1980] ECR 2481, [1981] 2 CMLR143 128

Bagnasco v. Banca Popolare di Novara(Joined Cases C-215/96 and C-216/96) [1999] ECR I-135 30

Banks v. British Coal Corporation (CaseC-128/92) [1994] ECR I-1209, [1994]5 CMLR 30 149

BAT and Reynolds v. Commission (JoinedCases 142/84 and 156/84) [1987]ECR 4487, [1988] 4 CMLR 24 3, 117,118, 129

Bguelin v. Import Export (Case 22/71)[1971] ECR 949, [1972] CMLR81 19 , 46

Bela-Mhle (Case 114/76) [1977] ECR

121, [1979] 2 CMLR 83 50Belasco v. Commission (Case 246/86)[1989] ECR 2117, [1991] 4 CMLR 9622, 40, 42

Bergaderm v. Commission (Case C-352/98P) [2000] ECR I-5291 144

Binon v. Agence et messageries de lapresse (Case 243/83) [1985] ECR2015, [1985] 3 CMLR 800 20 ,41

BMW v. Commission (Joined Cases 32/78, 3682/78) [1979] ECR 2435,

[1980] 1 CMLR 370 28BNIC v. Blair (Case 123/83) [1985] ECR

391, [1985] 2 CMLR 430 30, 41

Table of cases

European Court of Justice


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Boehringer v. Commission (Case 45/69)[1970] ECR 769 19

BP v. Commission (Case 77/77) [1978]ECR 1513, [1978] 3 CMLR 174 100 ,111

Brasserie de Haecht v. Wilkin-Janssen(Case 23/67) [1967] ECR 407, [1968]CMLR 26 29, 37, 116

Brasserie du Pcheur and Factortame(Joined Cases C-46 and C-48/93)[1996] ECR I-1029, [1996] 1 CMLR889 148

British Leyland v. Commission (Case226/84) [1986] ECR 3263, [1987] 1CMLR 185 90

BRT v. SABAM (I) (Case 127/73) [1974]

ECR 51, [1974] CMLR 238 6, 111BRT v. SABAM (II) (Case 127/73) [1974]ECR 313, [1974] 2 CMLR 238 90,150

Bundeskartellamt v. Volkswagen (CaseC-266/93) [1995] ECR I-3477, [1996]4 CMLR 478 10

Cadillon v. Hss (Case 1/71) [1971] ECR351, [1971] CMLR 420 31

Camera Care v. Commission (Case 792/79R) [1980] ECR 119, [1980] 1 CMLR

334 127, 128, 156Centre dinsmination de la Crespelle v.

Cooprative de la Mayenne (Case C-323/93) [1994] ECR I-5077 90

Cementhandelaren v. Commission (Case8/72) [1972] ECR 977, [1973] CMLR7 7, 29, 41

Chemiefarma v. Commission (Case 41/69) [1970] ECR 661 7, 36

CICCE v. Commission (Case 298/83)[1985] ECR 1105, [1986] 1 CMLR486 9

Compagnie Maritime Belge v.Commission (Joined Cases C-395/96P and C-396/96P) [2000] 4 CMLR1076 85 , 99 , 109

Compagnie Royale Asturienne des Minesv. Commission (Cases 2930/83)[1984] ECR 1679, [1985] 1 CMLR688 12

Commercial Solvents v. Commission(Joined Cases 6 and 7/73) [1974] ECR223, [1974] 1 CMLR 309 11, 13, 99

101 , 106 , 130Commission v. UK (Newcastle disease)(Case 40/82) [1982] ECR 2793,[1982] 3 CMLR 497 50, 97

Consten and Grundig v. Commission(Joined Cases 56 and 58/64) [1966]ECR 299, [1966] CMLR 418 6, 21,34, 44, 106, 123

Continental Can v. Commission (Case 6/

72) [1973] ECR 215, [1973] CMLR199 2, 5, 75, 77, 84, 86, 89

COSTA v. ENEL (Case 6/64) [1964] ECR585, [1964] CMLR 425 8

Courage v Crehan (Case C-453/99,Judgment of 20 September 2001, notyet updated) 149

CRAM and Rheinzink v. Commission(Cases 2930/83) [1984] ECR 1679,[1985] 1 CMLR 688 26

Deere v. Commission (Case C-7/95P)[1998] ECR I-3111 27Delimitis v. Henninger Bru (Case C-

234/89) [1991] ECR I-935, [1992] 5CMLR 210 37, 69, 145, 152

Deutsche Grammophon v. Commission(Case 78/70) [1971] 1 CMLR631 101

DGDC v. Asociacin Espaola de BancaPrivada (Case C-67/91) [1992] ECRI-4875 121

ENU v. Commission (Case C-107/91)[1993] ECR I-599 142

Europemballage Corporation andContinental Can Co. Inc. v.Commission (Case 6/72) [1973] ECR215, [1973] CMLR 199 18, 75

Fedesa (Case C-331/88) [1990] ECR I-4023 50

Ferrerie Nord v. Commission (Case C-219/95P) [1997] ECR I-4414, [1997] 5CMLR 575 29, 34

Ford Werke and Ford Europa v.Commission (Joined Cases 25 and26/84) [1985] ECR 2725, [1985] 3CMLR 528 28

France v. Commission (Case C-68/94)[1998] ECR I-1375 108

Franois v. Lucazeau v. SACEM (Case397/87) [1989] ECR 2811, [1991] 4CMLR 248 24

Francovich and Bonifaci (Joined Cases C-6/90 and 9/90) [1991] ECR I-5357,

[1993] 2 CMLR 66 148 , 149Fromanais v. Forma (Case 66/82)[1983] ECR 395, [1983] 3 CMLR453 50


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Table of cases xiii

General Motors v. Commission (Case 26/75) [1975] ECR 1367, [1976] 1 CMLR95 78, 87, 89, 111

Gttrup-Klim Grovvareforeninger andothers v. Dansk Landbrugs

Grovvareselskab (Case C-250/92)[1994] ECR I-5641, [1996] 4 CMLR191 30, 85, 111

GEMA v. Commission (Case 125/78)[1979] ECR 3173, [1980] 2 CMLR177 92, 119 , 129, 141 , 143

GT-Link v. De Danske Statsbaner (CaseC-242/95) [1997] ECR I-4449, [1997]5 CMLR 601 148

Gurin v. Commission (Case C-282/95P)[1997] ECR I-503, [1997] 5 CMLR

447118

,119

,137

GVL v. Commission (Case 7/82) [1983]ECR 483, [1983] 3 CMLR 645 92

Hasselblad v. Commission (Case 86/82)[1984] ECR 883, [1984] 1 CMLR559 36

Hoechst v. Commission (Cases 46/87and 227/88) [1989] ECR 2859, [1991]4 CMLR 410 121, 122

Hoffman-La Roche v. Commission (Case85/76) [1979] ECR 461, [1979] 3

CMLR 211 77, 79, 80, 84, 85, 87, 88,93, 94, 110

Hfner v. Macroton (Case C-41/90)[1991] ECR I-1979, [1993] 4 CMLR306 11, 91, 106

Hugin v. Commission (Case 22/78)[1979] ECR 1869, [1979] 3 CMLR345 77, 78, 105, 107

Hydrotherm v. Andreoli (Case 170/83)[1984] ECR 2999, [1985] 3 CMLR224 11

Ice-cream cases (Langnese-Iglo v.Commission) (Case C-279/95P)[1998] ECR I-5609, [1998] 5 CMLR933 13 0

ICI v. Commission (Case 48/69) [1972]ECR 619, [1972] CMLR 557 11, 13,14, 23, 24, 36

IBM v. Commission (Case 60/81) [1981]ECR 2639, [1981] 3 CMLR 635 123,136

Javico v. Yves Saint Laurent (Case C-306/96) [1998] ECR I-1983, [1998] 5CMLR 172 29

Koelman v. Commission (Case C-59/96P) [1997] ECR I-4812 128

Kruidvat v. Commission (Case C-70/97P) [1998] ECR I-7183, [1999] 5CMLR 68 139

Lancme v. Etos (Case 99/79) [1980]ECR 2511, [1981] 2 CMLR 164 39,128

Lawrie-Blum v. Land Baden-Wrttemberg (Case 66/85) [1986]ECR 2121, [1987] 43 CMLR 389 11

Leclerc v. Au Bl Vert (Case 229/83)[1985] ECR 1, [1985] 2 CMLR 2866

Levin v. Staatssecretaris van Justitie

(Case 53/81) [1982] ECR 1035,[1982] 2 CMLR 454 11LOral v. PVBA De Nieuwe (Case 31/

80) [1980] ECR 3775, [1981] 2 CMLR235 75, 113, 128

Louis Erwauw-Jacquery v. LaHesbignonne (Case 27/87) [1988]ECR 1919, [1988] 4 CMLR 576 36

Masterfoods v. HB Ice Cream (CaseC-344/98) [2000] ECR I-11369[2001] 4 CMLR 449 145, 147

Merci (Case C-179/90) [1991] ECRI-5889 91

Metro v. Commission (Metro I) (Case 26/76) [1977] ECR 1875, [1978] 2 CMLR1 70, 138

Metro v. Commission (Metro II) (Case75/84) [1986] ECR 3021, [1987] 1CMLR 118 138

Michelin v. Commission (Case 322/81)[1983] ECR 3461, [1985] 1 CMLR282 75, 81, 83, 86, 88, 94, 105, 106

Ministre Public v. Jean-Louis Tournier(Case 395/87) [1988] ECR 2521,[1991] 4 CMLR 248 93

Montecatini v. Commission (Case C-235/91P) [2000] 4 CMLR 691 72

Musique Diffusion Franaise and othersv. Commission (Joined Cases 100/80to 103/80) [1983] ECR 1825, [1983] 3CMLR 221 31, 123

National Carbonising Company (Case109/75R) [1975] ECR 1193 127

National Panasonic v. Commission (Case136/79) [1980] ECR 2033, [1980] 3CMLR 169 120


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Nungeser and Eisele v. Commission(Case 258/78) [1982] ECR 2015,[1983] 1 CMLR 278 11

Oude Luttikhuis v. Verenigde

Coperatieve Melkindustrie (Case C-399/93) [1995] ECR I-4515, [1996] 5CMLR 178 39

Orkem v. Commission (Case 374/87)[1989] ECR 3283, [1991] 4 CMLR502 120, 121

Oscar Bronner v. Mediaprint (Case C-7/97) [1998] ECR I-7791, [1999] 4CMLR 112 103

Papiers Peints v. Commission (Case 73/

74) [1975] ECR 11491, [1976] CMLR1491 30, 40Parke, Davis v. Centrafarm (Case 24/67)

[1968] ECR 55, [1968] CMLR 47 102Piraiki-Patriki v. Commission (Case 11/

82) [1985] ECR 207, [1985] 2 CMLR4 138

Plaumann v. Commission (Case 25/62)[1963] ECR 95, [1964] CMLR 29 138

Procurer de Roi v. Dassonville (Case 8/74) [1974] ECR 837, [1974] 2 CMLR436 11

Pronuptia v. Schillgalis (Case 161/84)[1986] ECR 353, [1986] 1 CMLR414 71

R. v. HM Treasury, ex parte BT (CaseC-392/93) [1996] ECR I-1631, [1996]2 CMLR 217 148

R. v. MAFF, ex parte Hedley Lomas (CaseC-5/94) [1996] ECR I-2533 148

Remia v. Commission (Case 42/84)[1985] ECR 2545, [1987] 1 CMLR1 29, 30, 49

Rendo v. Commission (Case C-19/93)[1995] ECR I-3319, [1997] 4 CMLR392 118

Rewe-Zentral Finanz v.Landwirtschaftskammer fr Saarland(Case 37/76) [1976] ECR 1989,[1977] 1 CMLR 533 148

RTE and ITP v. Commission (the Magillcases) (Cases C-241/91 etc.) [1995]ECR I-797, [1995] 4 CMLR 718 101,130

San Giorgio (Case 199/82) [1983] ECR3595 148

Sandoz v. Commission (Case C-277/87)[1990] ECR I-45 19, 20

Serena v. Eda (Case 40/70) [1971] ECR69, [1971] CMLR 260 102

Socit de Vente de Ciments et Btons delest v. Kerpen & Kerpen (Case 319/82) [1983] ECR 4173, [1985] 1 CMLR

511 46Socit Technique Minire v.

Maschinenbau Ulm (Case 56/65)[1966] ECR 234, [1966] CMLR357 29, 34, 36, 69

Sonito v. Commission (Case C-87/89)[1990] ECR I-1981 144

Stichting Sigaretten-industrie v.Commission (Cases 242/82 etc.)[1985] ECR 3831, [1987] 3 CMLR661 43, 116, 117

STM v. Maschinenbau Ulm (Cases 56 and58/65) [1966] ECR 234, [1966] CMLR357 7, 105

Suiker Unie v. Commission (Sugar cartel)(Joined Cases 4048, 50, 5456, 111,113114/73) [1975] ECR 1663, [1976]1 CMLR 295 24, 36, 88, 93

T. Port (Case C-68/95) [1996] ECRI-6065, [1997] 1 CMLR 1 142

Tepea v. Commission (Case 28/77)[1978] ECR 1391, [1978] 3 CMLR

392 19TetraPak International v. Commission

(Case C-333/94P) [1996] ECR I-5951,[1997] 4 CMLR 662 97, 99

Toepfer v. Commission (Cases 106107/63) [1965] ECR 405, [1966] CMLR111 138

Transocean Marine Paint v. Commission(Case 17/74) [1974] ECR 1063,[1974] 2 CMLR 459 126

Tremblay v. Commission (Case C-91/95P) [1996] ECR I-5547, [1997] 4CMLR 211 118

TWD (Case C-188/92) [1994] ECRI-833 14 0

United Brands v. Commission (Case 27/76) [1978] ECR 207, [1978] 1 CMLR429 7, 75, 77, 79, 82, 84, 85, 86, 89,90, 92, 99, 111, 132

V.A.G. France v. Etablissements MagneSA (Case 10/86) [1986] ECR 4071,

1988] 4 CMLR 98Van Gend en Loos v. Nederlandseadministratie der belastingen (Case26/62) [1963] ECR 1 [1963] CMLR105 5


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Table of cases xv

Van Landewyck v. Commission (JoinedCases 209215 and 218/78) [1980]ECR 3125, [1981] 3 CMLR 134 19,22, 41, 42, 50

Van Zuylen v. Hag (Case 192/73) [1974]

ECR 731, [1974] 2 CMLR 127 19VBVB and VBBB v. Commission (Joined

Cases 43/82 and 63/82) [1984] ECR19, [1985] 1 CMLR 27 48, 134

Viho Europe v. Commission (Case C-73/95P) [1996] ECR I-5457, [1997] 4CMLR 419 19

Vlk v. Vervaecke (Case 5/69) [1969]ECR 295, [1969] CMLR 273 31

Volvo v. Veng (Case 238/87) [1988] ECR6211, [1989] 4 CMLR 122 101

Wilhelm v. Bundeskartellamt (Case 14/68) [1969] ECR 1, [1969] CMLR100 8, 9, 10

Windsurfing International v. Commission(Case 193/83) [1986] ECR 611, [1986]3 CMLR 489 30

Zchner v. Bayerische Vereinsbank (Case172/80) [1981] ECR 2021, [1982] 1CMLR 313 24

Case 25/62 Plaumann v. Commission[1963] ECR 95, [1964] CMLR 29 138

Case 26/62 Van Gend en Loos v.Nederlandse administratie der

belastingen [1963] ECR 1, [1963]CMLR 105 5

Cases 106107/63 Toepfer v.Commission [1965] ECR 405, [1966]CMLR 111 138

Case 6/64 COSTA v. ENEL [1964] ECR585, [1964] CMLR 425 8

Joined Cases 56 and 58/64 Consten andGrundig v. Commission [1966] ECR299, [1966] CMLR 418 6, 21, 34, 44,106, 123

Case 56/65 Socit Technique Minire v.Maschinenbau Ulm [1966] ECR 234,[1966] CMLR 357 7, 29, 34, 36, 39,105

Case 23/67 Brasserie de Haecht v.Wilkin-Janssen [1967] ECR 407,[1968] CMLR 26 29, 37, 116

Case 24/67 Parke, Davis v. Centrafarm[1968] ECR 55, [1968] CMLR 47 102

Case 14/68 Wilhelm v. Bundeskartellamt[1969] ECR 1, [1969] CMLR 100 8,

9, 10Case 5/69 Vlk v. Vervaecke [1969] ECR

295, [1969] CMLR 273 31Case 41/69 Chemiefarma v. Commission

[1970] ECR 661 7, 18, 36Case 45/69 Boehringer v. Commission

[1970] ECR 769 19Case 48/69 ICI v. Commission [1972]

ECR 619, [1972] CMLR 557 11, 13,23, 24, 36

Case 40/70 Serena v. Eda [1971] ECR 69,[1971] CMLR 260 102Case 78/70 Deutsche Grammophon v.

Commission [1971] 1 CMLR631 101

Case 1/71 Cadillon v. Hss [1971] ECR351, [1971] CMLR 420 31

Case 22/71 Bguelin v. Import Export[1971] ECR 949, [1972] CMLR81 19, 46

Case 6/72 Continental Can v.Commission [1973] ECR 215, [1973]CMLR 199 2, 5, 18, 75, 77, 84, 86,89,

Case 8/72 Cementhandelaren v.Commission [1972] ECR 977, [1973]CMLR 7 7, 29, 41

Joined Cases 6 and 7/73 CommercialSolvents v. Commission [1974] ECR223, [1974] 1 CMLR 309 11, 13,99101, 106, 130

Joined Cases 4048, 50, 5456, 111,113114/73 Suiker Unie v.Commission (Sugar cartel) [1975]ECR 1663, [1976] 1 CMLR 295 24,36, 88, 93

Case 127/73 BRT v. SABAM (I) [1974]ECR 51, [1974] CMLR 238 6, 111

Case 127/73 BRT v. SABAM (II) [1974]ECR 313, [1974] 2 CMLR 238 90,150

Case 192/73 Van Zuylen v. Hag [1974]

ECR 731, [1974] 2 CMLR 127 19Case 8/74 Procurer de Roi v. Dassonville

[1974] ECR 837, [1974] 2 CMLR436 11


17/191

xvi EC Competition Law and Policy

Case 17/74 Transocean Marine Paint v.Commission [1974] ECR 1063, [1974]2 CMLR 459 126

Case 73/74 Papiers Peints v.Commission [1975] ECR 11491,

[1976] CMLR 1491 30, 40

Case 26/75 General Motors v.Commission [1975] ECR 1367, [1976]1 CMLR 95 78, 87, 89, 111

Case 109/75R National CarbonisingCompany [1975] ECR 1193 127

Case 26/76 Metro v. Commission (MetroI) [1977] ECR 1875, [1978] 2 CMLR1 70, 138

Case 27/76 United Brands v.Commission [1978] ECR 207, [1978] 1CMLR 429 7, 75, 77, 79, 82, 8486,89, 90, 92, 99, 111, 132

Case 37/76 Rewe-Zentral Finanz v.Landwirtschaftskammer fr Saarland[1976] ECR 1989, [1977] 1 CMLR533 148

Case 85/76 Hoffman-La Roche v.Commission [1979] ECR 461, [1979] 3CMLR 211 77, 79, 80, 84, 85, 87, 88,93, 94, 110

Case 114/76 Bela-Mhle [1977] ECR 121,[1979] 2 CMLR 83 50

Case 28/77 Tepea v. Commission [1978]ECR 1391, [1978] 3 CMLR 392 19

Case 77/77 BP v. Commission [1978]ECR 1513, [1978] 3 CMLR 174 100,111

Case 22/78 Hugin v. Commission [1979]ECR 1869, [1979] 3 CMLR 345 77,78, 105, 107

Joined Cases 32/78, 3682/78 BMW v.

Commission [1979] ECR 2435, [1980]1 CMLR 370 28

Case 125/78 GEMA v. Commission[1979] ECR 3173, [1980] 2 CMLR177 92, 119, 129, 141, 143

Joined Cases 209215 and 218/78 VanLandewyck v. Commission [1980]ECR 3125, [1981] 3 CMLR 134 19,22, 41, 42, 50

Case 258/78 Nungeser and Eisele v.Commission [1982] ECR 2015, [1983]

1 CMLR 278 11

Case 37/79 Anne Marty v. Este Lauder[1980] ECR 2481, [1981] 2 CMLR143 128

Case 99/79 Lancme v. Etos [1980] ECR2511, [1981] 2 CMLR 164 39, 128

Case 136/79 National Panasonic v.Commission [1980] ECR 2033, [1980]3 CMLR 169 120

Case 155/79 AM & S v. Commission[1982] ECR 1575, [1982] 2 CMLR264 122

Case 792/79R Camera Care v.Commission [1980] ECR 119, [1980] 1CMLR 334 127, 128, 156

Case 31/80 LOral v. PVBA De Nieuwe[1980] ECR 3775, [1981] 2 CMLR235 75, 113, 128

Joined Cases 100/80 to 103/80 Musique

Diffusion Franaise and others v.Commission [1983] ECR 1825, [1983]3 CMLR 221 31, 123

Case 172/80 Zchner v. BayerischeVereinsbank [1981] ECR 2021, [1982]1 CMLR 313 24

Case 53/81 Levin v. Staatssecretaris vanJustitie [1982] ECR 1035, [1982] 2CMLR 454 11

Case 60/81 IBM v. Commission [1981]ECR 2639, [1981] 3 CMLR 635 123,136

Case 322/81 Michelin v. Commission[1983] ECR 3461, [1985] 1 CMLR282 75, 81, 83, 86, 88, 94, 105, 106

Case 7/82 [1983] GVL v. CommissionECR 483, [1983] 3 CMLR 645 92

Case 11/82 Piraiki-Patriki v. Commission[1985] ECR 207, [1985] 2 CMLR4 138

Case 40/82 Commission v. UK

(Newcastle disease) [1982] ECR 2793,[1982] 3 CMLR 497 50, 97

Joined Cases 43/82 and 63/82 VBVBand VBBB v. Commission [1984]ECR 19, [1985] 1 CMLR 27 48,134

Case 66/82 Fromanais v. Forma [1983]ECR 395, [1983] 3 CMLR 453 50

Case 86/82 Hasselblad v. Commission[1984] ECR 883, [1984] 1 CMLR559 36

Case 107/82 AEG and Telefunken v.Commission [1983] ECR 3151, [1984]3 CMLR 325 27

Case 199/82 San Giorgio [1983] ECR3595 148


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Table of cases xvii

Cases 242/82 etc. Stichting Sigaretten-industrie v. Commission [1985] ECR3831, [1987] 3 CMLR 661 43, 116,117

Case 319/82 Socit de Vente de Ciments

et Btons de lest v. Kerpen & Kerpen[1983] ECR 4173, [1985] 1 CMLR511 46

Cases 2930/83 Compagnie RoyaleAsturienne des Mines v. Commission[1984] ECR 1679, [1985] 1 CMLR688 12

Cases 2930/83 CRAM and Rheinzink v.Commission [1984] ECR 1679, [1985]1 CMLR 688 26

Case 123/83 BNIC v. Blair [1985] ECR391, [1985] 2 CMLR 430 30, 41Case 145/83 Adams v. Commission

[1985] ECR 3539, [1986] 2 CMLR506 124, 144

Case 170/83 Hydrotherm v. Andreoli[1984] ECR 2999, [1985] 3 CMLR224 11

Case 193/83 Windsurfing International v.Commission [1986] ECR 611, [1986] 3CMLR 489 30

Case 229/83 Leclerc v. Au Bl Vert

[1985] ECR 1, [1985] 2 CMLR 286 6Case 243/83 Binon v. Agence et

messageries de la presse [1985] ECR2015, [1985] 3 CMLR 800 20, 41

Case 298/83 CICCE v. Commission[1985] ECR 1105, [1986] 1 CMLR486 9

Joined cases 25 and 26/84 Ford Werkeand Ford Europa v. Commission[1985] ECR 2725, [1985] 3 CMLR528 28

Case 42/84 Remia v. Commission [1985]ECR 2545, [1987] 1 CMLR 1 29, 30,49

Case 75/84 Metro v. Commission (MetroII) [1986] ECR 3021, [1987] 1 CMLR118 138

Joined Cases 142/84 and 156/84 BATand Reynolds v. Commission [1987]ECR 4487, [1988] 4 CMLR 24 3, 117,118, 129

Case 161/84 Pronuptia v. Schillgalis

[1986] ECR 353, [1986] 1 CMLR414 71Case 226/84 British Leyland v.

Commission [1986] ECR 3263, [1987]1 CMLR 185 90

Case 43/85 ANCIDES v. Commission[1987] ECR 3131, [1988] 4 CMLR821 125

Case 53/85 AKZO v. Commission [1986]ECR 1965 125, 137

Case 66/85 Lawrie-Blum v. Land Baden-Wrttemberg [1986] ECR 2121,[1987] 43 CMLR 389 11

Joined Cases 89/85, 104/85, 114/85,116117/85, 125129/85 Ahlstrmand others v. Commission (WoodpulpI) [1988] ECR 5193, [1988] 4 CMLR901 13

Joined Cases C-114/85 and C-125/85, C-89/85, C-104/85, C116117/85 andC-125129/85 Ahlstrm and others

v. Commission (Woodpulp II)Woodpulp (II) [1993] ECR I-1307,[1993] 4 CMLR 407 27, 123, 134

Case 10/86 V.A.G. France v.Etablissements Magne SA [1986]ECR 4071, [1998] 4 CMLR 98 46

Case C-62/86 AKZO v. Commission[1991] ECR I-3359, [1993] 5 CMLR215 98, 123

Case 66/86 Ahmed Saeed v. Zentrale zurBekmpfung Unlauteren Wettwerbs

[1989] ECR 803, [1990] 4 CMLR102 41, 91

Case 246/86 Belasco v. Commission[1989] ECR 2117, [1991] 4 CMLR96 22, 40, 42

Case 247/86 Alsatel v. Novasam[1988] ECR 5987, [1990] 4 CMLR434 75, 83

Case 27/87 Louis Erwauw-Jacquery v.La Hesbignonne [1988] ECR 1919,[1988] 4 CMLR 576 36

Cases 46/87 and 227/88 Hoechst v.Commission [1989] ECR 2859, [1991]4 CMLR 410 121, 122

Case 238/87 Volvo v. Veng [1988] ECR6211, [1989] 4 CMLR 122 101

Case C-277/87 Sandoz v. Commission[1990] ECR I-45 19, 20

Case 374/87 Orkem v. Commission[1989] ECR 3283, [1991] 4 CMLR502 120, 121

Case 395/87 Ministre Public v. Jean-

Louis Tournier [1988] ECR 2521,[1991] 4 CMLR 248 93Case 397/87 Franois v. Lucazeau v.

SACEM [1989] ECR 2811, [1991] 4CMLR 248 24


19/191

xviii EC Competition Law and Policy

Case C-331/88 Fedesa [1990] ECRI-4023 50

Case C-87/89 Sonito v. Commission[1990] ECR I-1981 144

Case C-234/89 Delimitis v. Henninger

Bru [1991] ECR I-935, [1992] 5CMLR 210 37, 69, 145, 152

Joined Cases C-6/90 and 9/90Francovich and Bonifaci [1991] ECR I-5357, [1993] 2 CMLR 66 148, 149

Case C-41/90 Hfner v. Macroton [1991]ECR I-1979, [1993] 4 CMLR 306 11,91, 106

Case C-179/90 Merci [1991] ECR I-5889 91

Case C-67/91 DGDC v. Asociaci

nEspaola de Banca Privada [1992]ECR I-4875 121

Case C-107/91 ENU v. Commission[1993] ECR I-599 142

Case C-235/91P Montecatini v.Commission [2000] 4 CMLR 691 72

Cases C-241/91 etc. RTE and ITP v.Commission (the Magill cases) [1995]ECR I-797, [1995] 4 CMLR 718 101,130

Case C-128/92 Banks v. British CoalCorporation [1994] ECR I-1209,[1994] 5 CMLR 30 149

Case C-188/92 TWD [1994] ECRI-833 140

Case C-250/92 Gttrup-KlimGrovvareforeninger and others v.Dansk Landbrugs Grovvareselskab[1994] ECR I-5641, [1996] 4 CMLR191 30, 85, 111

Case C-19/93 Rendo v. Commission[1995] ECR I-3319, [1997] 4 CMLR392 118

Joined Cases C-46 and C-48/93 Brasseriedu Pcheur and Factortame [1996]ECR I-1029, [1996] 1 CMLR 889 148

Case C-266/93 Bundeskartellamt v.Volkswagen [1995] ECR I-3477,[1996] 4 CMLR 478 10

Case C-323/93 Centre dinsmination dela Crespelle v. Cooprative de laMayenne [1994] ECR I-5077 90

Case C-392/93 R. v. HM Treasury, exparte BT [1996] ECR I-1631, [1996] 2CMLR 217 148

Case C-399/93 Oude Luttikhuis v.Verenigde Coperatieve Melkindustrie[1995] ECR I-4515, [1996] 5 CMLR178 39

Case C-5/94 R. v. MAFF, ex parteHedley Lomas [1996] ECR I-2533 148

Case C-68/94 France v. Commission[1998] ECR I-1375 108

Case C-333/94P TetraPak Internationalv. Commission [1996] ECR I-5951,[1997] 4 CMLR 662 97, 99

Case C-7/95P Deere v. Commission[1998] ECR I-3111 27

Case C-68/95 T. Port [1996] ECR I-6065,[1997] 1 CMLR 1 142

Case C-73/95P Viho Europe v.Commission [1996] ECR I-5457,[1997] 4 CMLR 419 19

Case C-91/95P Tremblay v. Commission[1996] ECR I-5547, [1997] 4 CMLR211 118

Case C-219/95P Ferrerie Nord v.Commission [1997] ECR I-4414,[1997] 5 CMLR 575 29, 34

Case C-242/95 GT-Link v. De DanskeStatsbaner [1997] ECR I-4449, [1997]5 CMLR 601 148

Case C-279/95P Ice-cream cases(Langnese-Iglo v. Commission [1998]ECR I-5609, [1998] 5 CMLR933 145, 147

Case C-282/95P Gurin v. Commission[1997] ECR I-503, [1997] 5 CMLR447 118, 119, 137

Case C-59/96P Koelman v. Commission

[1997] ECR I-4812 128Joined Cases C-215/96 and C-216/96

Bagnasco v. Banca Popolare diNovara [1999] ECR I-135 30

Case C-306/96 Javico v. Yves SaintLaurent [1998] ECR I-1983, [1998] 5CMLR 172 29

Joined Cases C-395/96P and C-396/96PCompagnie Maritime Belge v.Commission [2000] 4 CMLR1076 85, 99, 109

Case C-7/97 Oscar Bronner v. Mediaprint[1998] ECR I-7791, [1999] 4 CMLR112 103


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Table of cases xix

Case C-70/97P Kruidvat v. Commission[1998] ECR I-7183, [1999] 5 CMLR68 139

Case C-352/98P Bergaderm v.Commission [2000] ECR I-5291

144

Aroports de Paris v. Commission(Case T-128/98) [2000] ECR II-3929 93

Air France v. Commission (Case T-3/93)[1994] ECR II-121 137, 139Asia Motor France v. Commission (Case

T-28/90) [1992] ECR II-2285, [1992]5 CMLR 431 141

Automec v. Commission (Automec II)(Case T-24/90) [1992] 5 CMLR431 118, 129, 131

Bayer v. Commission (Case T-41/96R)[1996] ECR II-381, [1996] 5 CMLR290 134, 135

Bayer v. Commission (Case T-41/96)[2000] ECR II-3383 19, 20

BENIM v. Commission (Case T-5/93)[1995] ECR II-197, [1996] 4 CMLR305 117

BPB v. Commission (Case T-65/89)[1993] ECR II-389, [1993] 5 CMLR32 93, 100

BPB Eendracht v. Commission (CaseT-311/94) [1998] ECR II-1129 123

Bureau Europen des Unions desConsommateurs v. Commission (CaseT-37/92) [1994] ECR II-285, [1995] 4CMLR 167 117

CB and Europay v. Commission (JoinedCases T-39/92 and T-40/92) [1994]ECR II-49 48

Cimenteries v. Commission (Cases T-1012/92 and T-15/92) [1992] ECR II-2667, [1992] 4 CMLR 259 123

Cimenteries v. Commission (Joined CasesT-25/95) [2000] ECR II-491, [2000] 5

CMLR 204 124, 136Comit Central dentreprise de la SocitGnrale des Grandes Sources andothers v. Commission (Case T-96/92)[1995] ECR II-1213 139

Court of First Instance

Case C-344/98 Masterfoods v. HB IceCream [2000] ECR J-11369 [2001] 4CMLR 449 145, 147

Case C-453/99 Courage v. Crehan,Judgment of 20 September 2001,

not yet reported 149

Comit Central dentreprise de la SocitAnonyme Vittel and others v.Commission (Case T-12/93) [1995]

ECR II-1247139

Compagnie Maritime Belge v.Commission (Joined Cases T-2426and 28/93) [1996] ECR II-1201 109

Deere v. Commission (Case T-35/92)[1994] ECR II-957 27

Deutsche Bahn v. Commission (Case T-229/94) [1997] ECR II-1689, [1998] 4CMLR 220 78, 87

Dutch banks (Case T-138/89) [1992]ECR II-2195, [1993] 5 CMLR

435 137

Enichem Anic v. Commission (Case T-6/89) [1991] ECR II-1623 12

ENS v. Commission (Joined Cases T-374375, 384, 388/94) [1998] ECR II-3141 39

Ferriere Nord v. Commission (CaseT-143/89) [1995] ECR II-917 39

Gencor v. Commission (Case T-102/96)[1999] ECR II-753, [1999] 4 CMLR971 14, 109

Hercules v. Commission (Polypropylenecartel case) (Case T-7/89) [1991] ECRII-1711, [1992] 4 CMLR 84 20, 123

Hilti v. Commission (Case T-30/89)[1991] ECR II-1439, [1992] 4 CMLR16 78, 82, 83

Ice-cream cases (Langnese-Iglo v.

Commission) (Cases T-7/93 and T-9/93) [1995] ECR II-1633, [1995] 5CMLR 602 128, 130

ICI v. Commission (Case T-36/91) [1995]ECR II-1847 124


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xx EC Competition Law and Policy

Irish Sugar (Case T-228/97) [1999] ECRII-2969, [1999] 5 CMLR 1300 87,108

ITT Promedia v. Commission (Case T-111/96) [1998] ECR II-2937, [1998] 5

CMLR 491 97

Kruidvat v. Commission (Case T-87/92)[1996] ECR II-1931, [1997] 4 CMLR1046 139

La Cinq v. Commission (Case T-44/90)[1994] ECR II-1, [1992] 4 CMLR449 128

Mayr-Melnhof Kartongedellschaft v.

Commission (Case T-347/94) [1998]ECR II-1751 20Mtropole v. Commission (Joined Cases

T-528/93, T-542/93, T-543/93 and T-546/93) [1996] ECR II-649, [1996] 5CMLR 386 139

Mtropole v. Commission (Case T-112/99, Judgment of 17 September 2001,not yet reported 72

Mtropole v. Commission (Case T-206/99) (judgment of 21 March 2001, notyet reported) 118

Montecatini v. Commission (Case T-14/89) [1992] ECR II-2409 72

Prodifarma v. Commission (Case T-3/90)[1991] ECR II-1 136, 142

RTE v. Commission (the Magill cases)(Cases T-69/70/89 etc.) [1991] ECRII-485, [1991] 4 CMLR 586 102,106

Schller v. Commission (Case T-9/93)[1995] ECR II-1611, [1995] 5 CMLR602 32

Scottish Football Association v.Commission (Case T-46/92) [1994]ECR II-1039 121

Shell v. Commission (Case T-11/89)[1992] ECR II-757 12

Societ Italiana Vetro v. Commission(Cases T-68, 77 and 79/89) [1992]ECR II-1403, [1992] 5 CMLR302 107, 109

Solvay v. Commission (Case T-30/91)[1995] ECR II-1775, [1996] 5 CMLR57 106, 124

TetraPak v. Commission (TetraPak II)(Case T-83/91) [1994] ECR II-755 83, 88, 92, 96, 104

Tierc Ladbrooke (Case T-504/93)[1997] ECR II-923, [1997] 5 CMLR

309 10 2Trfilunion v. Commission (Case T-148/

89) [1995] ECR II-1063 36, 43

Case T-6/89 Enichem Anic v.Commission [1991] ECR II-1623 12

Case T-7/89 Hercules v. Commission(Polypropylene cartel case) [1991]ECR II-1711, [1992] 4 CMLR 84 20,123

Case T-11/89 Shell v. Commission [1992]ECR II-757 12

Case T-14/89 Montecatini v. Commission[1992] ECR II-2409 72

Case T-30/89 Hilti v. Commission [1991]ECR II-1439, [1992] 4 CMLR 16 78,82, 83

Case T-65/89 BPB v. Commission [1993]ECR II-389, [1993] 5 CMLR 32 93,100

Cases T-68, 77 and 79/89 SocietItaliana Vetro v. Commission [1992]

ECR II-1403, [1992] 5 CMLR302 107, 109

Cases T-69/70/89 etc. RTE v.Commission (the Magill cases) [1991]ECR II-485, [1991] 4 CMLR 586 101,130

Case T-138/89 Dutch banks [1992]ECR II-2195, [1993] 5 CMLR435 13 7

Case T-143/89 Ferriere Nord v.Commission [1995] ECR II-917 34

Case T-148/89 Trfilunion v. Commission[1995] ECR II-1063 36, 43

Case T-3/90 Prodifarma v. Commission[1991] ECR II-1 136, 142

Case T-24/90 Automec v. Commission(Automec II) [1992] 5 CMLR431 118, 129, 131

Case T-28/90 Asia Motor France v.Commission [1992] ECR II-2285,[1992] 5 CMLR 431 141

Case T-44/90 La Cinq v. Commission

[1994] ECR II-1, [1992] 4 CMLR449 12 8


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Table of cases xxi

Case T-30/91 Solvay v. Commission[1995] ECR II-1775, [1996] 5 CMLR57 106, 124

Case T-36/91 ICI v. Commission [1995]ECR II-1847 124

Case T-83/91 TetraPak v. Commission(TetraPak II) [1994] ECR II-755 83,88, 92, 96, 104

Cases T-1012/92 and T-15/92Cimenteries v. Commission [1992]ECR II-2667, [1992] 4 CMLR259 123

Case T-35/92 Deere v. Commission[1994] ECR II-957 27

Case T-37/92 Bureau Europen des

Unions des Consommateurs v.Commission [1994] ECR II-285,[1995] 4 CMLR 167 117

Joined Cases T-39/92 and T-40/92 CBand Europay v. Commission [1994]ECR II-49 48

Case T-46/92 Scottish FootballAssociation v. Commission [1994]ECR II-1039 121

Case T-87/92 Kruidvat v. Commission[1996] ECR II-1931, [1997] 4 CMLR1046 139

Case T-96/92 Comit Centraldentreprise de la Socit Gnrale desGrandes Sources and others v.Commission [1995] ECR II-1213139

Case T-3/93 Air France v. Commission[1994] ECR II-121 137, 139

Case T-5/93 BENIM v. Commission[1995] ECR II-197, [1996] 4 CMLR305 117

Cases T-7/93 and T-9/93 Ice-creamcases (Langnese-Iglo v. Commission)[1995] ECR II-1633, [1995] 5 CMLR602 128, 130

Case T-9/93 Schller v. Commission[1995] ECR II-1611, [1995] 5 CMLR602 32

Case T-12/93 Comit Centraldentreprise de la Socit AnonymeVittel and others v. Commission[1995] ECR II-1247 139

Joined Cases T-2426 and 28/93Compagnie Maritime Belgev. Commission [1996] ECR II-1201109

Case T-504/93 Tierc Ladbrooke [1997]

ECR II-923, [1997] 5 CMLR 309102

Joined Cases T-528/93, T-542/93,T-543/93 and T-546/93 Mtropole v.Commission [1996] ECR II-649,[1996] 5 CMLR 386 118

Case T-229/94 Deutsche Bahn v.Commission [1997] ECR II-1689,[1998] 4 CMLR 220 78, 87

Case T-311/94 BPB Eendracht v.

Commission [1998] ECR II-1129123Joined Cases T-374375, 384, 388/94

ENS v. Commission [1998] ECR II-3141 39

Joined Cases T-25/95 Cimenteries v.Commission [2000] ECR II-491,[2000] 5 CMLR 204 124, 136

Case T-41/96 Bayer v. Commission[2000] ECR II-3383 19, 20

Case T-41/96R Bayer v. Commission[1996] ECR II-381, [1996] 5 CMLR290 134, 135

Case T-102/96 Gencor v. Commission[1999] ECR II-753, [1999] 4 CMLR971 14, 109

Case T-111/96 ITT Promedia v.Commission [1998] ECR II-2937,[1998] 5 CMLR 491 97

Case T-228/97 Irish Sugar [1999] ECRII-2969, [1999] 5 CMLR 1300 87,108

Case T-128/98 Aroports de Paris v.Commission [2000] ECR II-3929 93

Case T-112/99 Mtropole v. Commission(Judgment of 18 September 2001, notyet reported 72

Case T-206/99 Mtropole v. Commission(judgment of 21 March 2001, not yetreported) 118


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xxii EC Competition Law and Policy

National

UK

American Cyanamid v. Ethicon [1975]AC 396 150

Application des Gaz v. Falks Veritas[1974] Ch. 381 148

Chelmkarm v. Esso [1979] 1 CMLR73 150

Cutsforth v. Mansfield Inns [1986]

1 CMLR 1 148, 150Garden Cottage Foods v. Milk Marketing

Board [1984] AC 130 148, 150

USA

United States v. Alcoa, 148F 2d 416 (2Circ. 1945) 13


24/191

Chapter title xxiii

Table of EC Treaty provisions

Art. 3(g) EC 2Art. 10 EC 8Art. 28 EC 111Art. 30 EC 111Art. 39 EC 11Arts 8189 EC 2Art. 81 EC 15

Art. 81(1) EC 17, 113, 145, 150Art. 81(2) EC 46, 113, 145, 150

Art. 81(3) EC 46, 47, 51, 113, 147Art. 82 EC 15, 76

Art. 82(1)(a) EC 89Art. 82(1)(b) EC 91

Art. 82(1)(c) EC 91

Art. 82(1)(d) EC 96Art. 83 EC 155

Art. 85(3) 113, 116Art. 86 EC 92

Art. 87 EC 3

Art. 87(2) EC 3Art. 87(3) EC 3

Art. 88 EC 3Art. 225 EC 135

Art. 229 EC 135Art. 230 EC 119, 135, 140, 147

Art. 230(1) EC 133, 136, 137

Art. 230(3) EC 138Art. 230(4) EC 138, 142

Art. 230(5) EC 140Art. 232(2) EC 119, 135, 141

Art. 232(3) EC 119, 142Art. 234 EC 140, 146, 147

Art. 235 EC 143

Art. 242 EC 135Art. 243 EC 135

Art. 253 EC 118, 134Art. 254(3) EC 134

Art. 288(2) EC 143


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xxiv EC Competition Law and Policy


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Chapter title xxv

Table of EC legislation

Council Regulations

Reg. 17/62 OJ Sp. Ed. [1962] 204/62,p. 87 3, 47Art. 2 116Art. 3 116, 127, 129, 143, 155Art. 4(1) 51, 116

Art. 4(2) 116, 152Art. 4(2)(2) 116Art. 5(1) 116Art. 6(1) 58, 116Art. 6(2) 58, 116

Art. 8(1) 133

Art. 9(1) 113, 116, 145Art. 9(3) 145, 150Art. 11 120, 153Art. 11(2) 120Art. 11(3) 120Art. 11(4) 120, 137Art. 11(5) 120, 127Art. 12 121Art. 13 121Art. 14 120, 153Art. 14(1) 120Art. 14(3) 120, 127, 137Art. 15(5) 117, 132, 136Art. 15(6) 117, 126, 136Art. 16 132Art. 17 132Art. 19 125, 139

Art. 19(1) 125Art. 19(2) 125Art. 20(1) 121

Reg. 141/62 OJ Sp. Ed. [195962] 291 3,11, 114

Reg. 19/65 OJ Sp. Ed. [1965] 35 47, 51Art. 1(1)(a) 57

Reg. 1017/68 OJ Sp. Ed. [1968] 302 3, 11,114Art. 12(3) 133

Reg. 2821/71 OJ Sp. Ed. [1971] 1032 47,51

Reg. 4064/89 OJ [1989] L 257/13

(amended OJ [1990] L 257/13) 3, 114,139Reg. 1534/91 OJ [1992] L 398/7 48, 51Reg. 1310/97 OJ [1997] L 180/1 114Reg. 659/1999 OJ [1999] L 83/1 3Reg. 1215/99 OJ [1999] L 148/1 57Reg. 1216/99 OJ [1999] L 148/5 57, 116

Commission Regulations

Reg. 99/63 OJ Sp. Ed. [1963] 47 118Art. 6 141

Reg. 67/67 OJ Eng. Sp. Ed. [1967] 52Reg. 1983/83 OJ [1983] L 173/1 52

Art. 1 52Art. 2 53Art. 6 64

Reg. 1984/83 OJ [1983] L 173/5 37, 52Art. 1 37Art. 3(d) 37, 53Art. 14 63

Reg. 417/85 OJ [1985] L 53/1 48, 53Art.1 53Reg. 418/85 OJ [1985] L 53/5 53Art. 1 53

Reg. 4056/86 OJ [1986] L 378/4 3, 11, 114


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xxvi EC Competition Law and Policy

Reg. 1475/88 OJ [1995] L 145/25 52, 60Art. 1 52

Reg. 4087/88 OJ [1988] L 359/46 52Art. 1(3)(a) 52Art. 1(3)(b) 52

Art. 6 53Art. 8 64

Reg. 240/96 OJ [1996] L 31/2 45, 52, 60Art. 7 64

Reg. 1582/97 OJ [1997] L 214/2 52Reg. 2236/97 OJ [1997] L 306/12 53Reg. 2842/98 OJ [1998] L 354/18 118,

134Art. 3 122Art. 4 122, 126Art. 5 126

Art. 6 118, 137, 141Art. 8 126Art. 9 126Art. 9(3) 126Arts 1014 126

Art. 13(1) 123Reg. 2790/1999 OJ [1999] L 336/21,

[2000] 4 CMLR 398 7, 33, 44, 46, 48, 66,67

Art. 1 59, 67Art. 1(c) 28, 60Art. 2 59, 67

Art. 2(1) 60Art. 2(1)(1) 59Art. 2(1)(2) 60Art. 2(2) 60, 61Art. 2(3) 60Art. 2(4) 60Art. 2(5) 60Art. 3 60, 67Art. 4 60Art. 4(a) 41, 62Art. 4(b) 62Art. 4(c) 62

Art. 4(d) 63Art. 4(e) 63Art. 5 63Art. 5(a) 63Art. 5(b) 63Art. 5(c) 63Art. 6 64Art. 7 64Art. 8 64Art. 12 54Art. 13 54

Reg. 2658/2000 OJ [2000] L 304/3, [2001]4 CMLR 800 60, 65Art. 1 53

Art. 5(1) 34Reg. 2659/2000 OJ [2000] L 304/7, [2001]

4 CMLR 808 7, 42, 60, 65Art. 1 53Art. 5(1) 34

Commission DraftRegulations

Draft regulation implementing Articles 81and 82 EC [ 2000] 5 CMLR 1148 3, 10,154, 155, 156, 157

Council Decisions

88/591 OJ [1988] L 319/1 13593/350 OJ [1993] L 144/21 135

Commission Notices

Notice on co-operation between nationalcourts and the Commission in applying

Articles 85 and 86 of the EEC Treaty, OJ[1993] C 39/6, [1993] 5 CMLR 95 6, 146,147

Notice on co-operation between nationalcompetition authorities and theCommission in handling cases fallingwithin the scope of Articles 85 and 86 ofthe EEC Treaty, OJ [1997] C 313/3,[1997] 5 CMLR 884 6, 9, 150

Notice on access to the file, OJ [1997] C25/3 123

Notice on agreements of minorimportance, OJ [1997] C 372/3 31, 32

Notice on market definition OJ [1997] C372/5 75, 77, 79, 81, 82, 84

Commission Guidelines

Guidelines on vertical restraints, OJ [2000]C 291/1, [2000] 5 CMLR 1074 41, 55

Guidelines on the applicability of Article

81 EC to categories of research anddevelopment agreements, OJ [2001] C3/2, [2001] 4 CMLR 819 42


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The foundations of EC competition law 1

1

The foundations of ECcompetition law

1.1 Introduction

Competition law is a rapidly developing area, fundamental to most legalsystems. Despite its idiosyncratic and technical character, it influencesnumerous fields of law and itself draws heavily on principles of economicsand politics. Its primary aim is to protect and encourage the competitiveprocess, resulting in an optimum allocation of resources and the maxi-

misation of consumer welfare. Bork points out: antitrust was originallyconceived as a limited intervention in free and private processes for thepurpose of keeping these processes free.1 In other words, competition lawregulates market behaviour in order to preserve a free market economy. Ina perfectly competitive market i.e. one in which there are no barriers toentry or exit, where buyers and sellers of homogeneous products areplentiful, and where competitors have similar and very small marketshares and there is total transparency a system of competition law would

be superfluous. This type of market is, however, almost impossible to find

in practice, just as pure monopoly is unlikely to arise without stateintervention. Most markets are placed between these two extremes and, inthe absence of any form of control, undertakings are inclined to collude tofix prices, those in a dominant position misuse their market strength andmergers lead to excessive concentrations of economic power.2 All thesepractices hinder or impede the competitive process.

Competition law has played a prominent role in the development of EClaw. In addition to the general objectives outlined above, it has also con-tributed significantly, and often controversially, to the consolidation of the

1 See R. H. Bork, The Antitrust Paradox: A Policy at War with Itself(New York, 1978, reprintedwith a new Introduction and Epilogue, 1993) at p. 418.

2 For a full discussion of the economic background of competition policy, see E. Gellhornand W. E. Kovacic,Antitrust Law and Economics (St Paul, MN, 1994).


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2 EC Competition Law and Policy

single market objective of the Treaty. In the following pages the basicprinciples that underpin EC competition law will be considered.

1.2 The EC Treaty provisions in competition

Although the Preamble to the Treaty refers to the need to guaranteesteady expansion, balanced trade and fair competition, the basis of ECcompetition policy is Article 3(g) EC. This Article provides that one of theactivities intended to help the achievement of the aims of the Communityis the establishment of a system ensuring that competition in the internalmarket is not distorted. Since this is a provision drafted in very generalterms as are many others in the Treaty the Commission and Com-

munity judicature have been primarily responsible for the shaping of theaims and objectives of EC competition law.

Articles 8189 EC establish a set of rules on competition and can bedivided into two main groups: (a) those that focus on the activities ofundertakings, and (b) those that focus on the activities of governments.

1.2.1 Rules concerning the activities of undertakings

Three provisions set out the parameters within which undertakingsshould operate to guarantee, as far as possible, the preservation of acompetitive market:

1. Article 81 EC refers to anti-competitive behaviour that results fromcollusion between private undertakings. It prohibits agreements,decisions by associations of undertakings and concerted practiceswhich may affect trade between Member States and that have the objector effect of preventing, restricting or distorting competition.

2. Article 82 EC aims to control abuses of dominant position, by one or more

private undertakings, which may affect trade between Member States.3. Article 86 EC sets out the rules that apply topublic undertakings or to

undertakings granted special rights.

The Treaty did not establish a specific legal basis for mergers betweenundertakings. The European Court of Justice (ECJ) in some of its early caselaw, considered the suitability of Articles 81 EC or 82 EC as the means ofcontrolling mergers. In particular, its judgment in Continental Can v.Commission,3 supported the Commissions use of Article 82 EC for these

3 Case 6/72 [1973] ECR 215, [1973] CMLR 199.


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purposes.4 The adoption of the Merger Regulation in 1989, however,finally provided a separate substantive and procedural framework for theregulation of concentrations between undertakings.5

1.2.2 Rules concerning the activities of governments

Competition may be distorted not only by undertakings, but also by theaction of a Member State, most commonly where the latter gives artificialcompetitive advantages to declining national industries. Article 87 EC laysdown the principle that state aids are incompatible with EC law, unlessotherwise provided in the Treaty. This provision also sets out some kindsof aid that are automatically6 or that may be permitted.7

1.2.3 Procedural rules

Article 83 EC provides that the Council will adopt appropriate regulationsor directives to give effect to the principles in Articles 81 and 82 EC. On the

basis of this provision, the Council enacted Regulation 17/62,8 which setsout the general procedure for the enforcement of Articles 81 and 82 EC atCommunity level. A radical reform of the system of enforcement providedin Regulation 17/62 was suggested by the Commission in its 1999 White

Paper on enforcement.9

This crystallised in the recent proposal of theCommission for a draft enforcement regulation in September 2000.10 Thecurrent system of enforcement and the proposed reforms will beconsidered in detail in Chapter 4.

Moreover, certain sectors of the economy are the subject of specialregulations, such as transport.11 Likewise, mergers and state aids are sub-

ject to specific procedural rules set out respectively in the EC Mergerregulation12 and in Article 88 EC and its implementing regulation.13

4 In BAT and Reynolds v. Commission [1987] ECR 4487, [1988] 4 CMLR 24, the Courtconfirmed the Commissions view that Article 81 EC could be used in cases where anundertaking acquired a minority shareholding in a competitor, thus prompting fears thatthis was a stepping stone for the application of Article 81 EC to mergers.

5 See Council Regulation 4064/89 OJ [1989] L 395/1 (amended OJ [1990] L 257/13).6 See Article 87(2) EC.7 See Article 87(3) EC.8 OJ Sp. Ed. [1962] 87.9 OJ [1999] C 132/1, [1999] 5 CMLR 208.

10 [2000] 5 CMLR 1148.11 See Regulation 141/62 (OJ Sp. Ed. [195962] 291); Regulation 1017/68 (OJ Sp. Ed. [1968]

302); Regulation 4056/86 (OJ [1986] L 378/4).12 See supra n. 5.13 See Council Regulation 659/1999 (OJ [1999] L 83/1).


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1.3 The scope of application of Articles 81 and 82 EC

As this work focuses on Articles 81 and 82 EC, it seems necessary at theoutset to understand the basic structure and scope of application of these

two provisions. This is set out in Figure 1.1.14

Article 81 EC deals with anti-competitive behaviour that results fromcollusion between undertakings. This provision therefore does not refer tounilateral but to bilateral or multilateral behaviour. It is divided into threeparagraphs. The first lays down a general prohibition against anti-competitive forms of cooperation between undertakings. The second pro-vides a sanction of nullity for the infringement of that prohibition. Thethird allows exemptions to be granted to forms of cooperation that comeunder the prohibition in the first paragraph, on account of their beneficial

effects.

14 See infra p. 4.

Anti-competitive agreements, Abuses of dominantdecisions by associations of position by one orundertakings and concerted more undertakingspractices.

Article 81 EC Article 82 EC(ex Art. 85) (ex Art. 86 EC)

Art. 81(1) = Prohibition Art. 82 = Prohibition

Art. 81(2) = Sanction

Art. 81(3) = Exemptions

Figure 1.1 Scope of application of Articles 81 and 82 EC

MMMMM

MMMMM

MMMMM

MMMMM

MMMMM MMMMM


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Article 82 EC, by contrast, prohibits abuses of dominant position by oneor more undertakings. As the Court expressed it in Continental Can,15 thisprovision concerns the unilateral activity of one or more undertakings.Even when more than one undertaking is involved such as in the case of

joint or collective dominance their behaviour is still regarded asunilateral where they operate as a single economic unit which is dominantand abuse that position of dominance. The structure of Article 82 EC issimple: it comprises only a prohibition on abuses of dominant positionand there is neither a provision for automatic nullity nor a provision forexemption equivalent to those in Article 81 EC.

Articles 81 and 82 EC will be considered in detail in Chapters 2 and 3 ofthis work respectively.

1.4 The two levels of enforcement of EC competition law:the roles of the Commission, the national courts

and national authorities

Articles 81 and 82 EC are both enforced at Community level and atnational level.

At Community level, the Commission is the enforcement authority, asprovided by Article 85 EC, and its specific powers are laid down in

Regulation 17/62. Under this regulation, the Commission may find thatthere has been an infringement of Article 81 or 82 EC and, as a result,impose fines or, alternatively, it may adopt decisions finding that there has

been no breach of the competition rules. It may also grant exemptions.16

Undertakings dissatisfied with Commission decisions may challengethem before the Court of First Instance and an appeal on points of law isavailable before the European Court of Justice.17

At national level, national courts and national competition authoritiesare competent to enforce competition law.18 National courts derive their

power to apply Articles 81(1) and (2) and Article 82 EC from the directeffect of these provisions.19 The power of enforcement of national com-

15 See supra n. 3.16 See infra Chapter 4, section 4.2.1.17 The judicial review of acts adopted by the Commission in the enforcement of competition

policy is discussed in detail in Chapter 4, section 4.2.2.18 See infra Chapter 4, section 4.3.19 The EC Treaty did not expressly lay down the principle of direct effect. This was

enunciated by the Court in its seminal judgment in Van Gend en Loos v. Nederlandseadministratie der belastingen (Case 26/62 [1963] ECR 1, [1963] CMLR 105), where the Court

held that Treaty provisions were capable of giving rights to individuals that could beenforced before national courts (at p. 12). The Court explained that, to be directly effective,a provision had to be sufficiently clear and unconditional and not subject to furtherimplementation (at p. 13). In competition law, the Court took the view that Articles 81(1)


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petition authorities is founded in Articles 84 EC and 9(3) of Regulation17/62.20 However, in the current system of enforcement, neither nationalcourts nor national authorities can grant exemption or, in other words,apply Article 81(3) EC. This is because Article 9(1) of Regulation 17/62

granted the Commission the exclusive power to grant exemptions. One ofthe core reforms suggested by the Commission in its 1999 White Paper isthat Article 81 EC, as a whole, should be directly applicable by nationalcourts and national authorities.21

1.5 The aims of EC competition policy

In its XXIXth Report on Competition Policy, the Commission clearly set

out the two principal objectives that underline Community Competitionlaw:

The first objective of competition policy is the maintenance of competitivemarkets. Competition policy serves as an instrument to encourage industrialefficiency, the optimal allocation of resources, technical progress and theflexibility to adjust to a changing environment The second is the singlemarket objective 22

Therefore, in addition to the general goals pursued by any competitionsystem, EC competition law fulfils the function of contributing to theachievement of the single market.23 The removal of barriers to the freemovement of factors of production put in place by Member States would

be pointless if private parties could divide the territories of the CommonMarket by means of anti-competitive practices or if concentrations ofeconomic power could significantly restrict market access.24

and Article 82 EC were directly effective in BRTv. SABAM (I) (Case 127/73 [1974] ECR 51,[1974] CMLR 238). See also the Notice on co-operation between national courts and theCommissionin applying Articles 85 [now 81] and 86 [now 82] of the EEC [now EC] Treaty (OJ[1993] C 39/6, [1993] 5 CMLR 95) at II.5.

20 Unlike the national courts, however, they can only enforce Articles 81(1) and 82 EC as longas the Commission has not initiated enforcement proceedings (see Article 9(3) Regulation17/62). See also the Notice on co-operation between national competition authorities and theCommission in handling cases falling within the scope of Articles 85 [now 81] and 86 [now 82] ofthe EC Treaty (OJ [1997] C 313/3, [1997] 5 CMLR 884).

21 See infra Chapter 4, section 4.4 [1999].22 See the XXIXth Report on Competition Policy at paragraphs 2 and 3.23 The inextricable link existing between the Treaty provisions on competition and the

consolidation of the single market has been emphasised repeatedly by the Court (see, forexample, its judgment in Leclerc v.Au Bl Vert (Case 229/83 [1985] ECR 1, [1985] 2 CMLR286), at paragraph 9 of the judgment).

24 In Constenand Grundig v. Commission (Joined Cases 56 and 58/64 [1966] ECR 299, [1966]CMLR 418), the Court held that an agreement between a producer and a distributor


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The Commission and the Community judicature have, in their inter-pretation of Articles 81 and 82 EC, consistently upheld the single marketobjective. This has been achieved by the prohibition of agreements thatmay lead to the partitioning of the Common Market, such as market

sharing agreements,25 and also with the exemption of certain agreementsthat may promote cross-border trade, such as research and developmentagreements26 or certain vertical agreements.27 The single market aim hasalso influenced the construction of certain types of abusive conduct, forexample discriminatory practices.28 Finally the Court has also consistentlyinterpreted the requirement in both Articles 81 and 82 EC that the anti-competitive practices should have an effect on intra-Community tradewith a view to upholding the single market principle.29

The defence of this specific objective of EC competition law has not

been uncontroversial. For example, in United Brands v. Commission,30 theCourt upheld the Commissions view that United Brands, a leading worldproducer of bananas, had abused its position of dominance in a series ofpractices which included the charging of different prices to its distributorsin the Community. The principle of non-discrimination is, of course, one ofthe tenets of the Common Market. The Court took the view that thedifferent prices, in combination with the other resale restrictions imposed

by United Brands, created a rigid partitioning of national markets. Theruling of the Court was, however, criticised as lacking a proper economic

basis and argued to be justified solely by the need to uphold the singlemarket ideal.31

which might tend to restore the national division in trade between Member-States mightbe such as to thwart the most basic objectives of the Community. The Treaty, whosepreamble and text aim to suppress the barriers between States, and which in severalprovisions gives evidence of a stern attitude with regard to their reappearance, could notallow undertakings to reconstruct such barriers (at p. 340).

25 See Case 41/69 Chemiefarma v. Commission [1970] ECR 661, and the decision of theCommission in Re Soda Ash (Decision 91/297/EEC OJ [1991] L 152/1, [1994] 4 CMLR 454).

26 See Regulation 2659/2000 (OJ [2000] L 304/7).27 See Regulation 2790/1999 (OJ [1999] L 336/21).28 See Case 27/76 United Brands v. Commission [1978] ECR 207, [1978] 1 CMLR 429, and the

decision of the Commission in The Football World Cup 1998 (Decision 2000/12/EC OJ[2000] L 5/55, [2000] 4 CMLR 963).

29 See, for example, the very wide interpretation of the test by the Court in STM v.Maschinenbau Ulm (Case 56/65 [1966] ECR 234, [1966] CMLR 357) or the consistent line ofcase law that holds that even a purely national agreement can have an effect on intra-Community trade if it contributes to the isolation of national markets and makes thepenetration of imports difficult (see Case 8/72 Cementhandelaren v. Commission [1972] ECR977, [1973] CMLR 7).

30 Case 27/76, supra n. 28.31 See W. Bishop, Price discrimination under Article 82 EC: political economy in the

European Court [1981] 4 MLR 282.


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1.6 Community competition law and national law

Member States of the Community have their own systems of nationalcompetition law, which may differ substantially from the one provided in

the EC Treaty. This was the case in the United Kingdom until the enact-ment of the 1998 Competition Act, the Chapter I and II prohibitions ofwhich mirror closely Articles 81 and 82 EC respectively.

The EC Treaty remained silent about how conflicts between EC law andnational law should be resolved. In COSTA v. ENEL,32 the Court laid downthe principle of the supremacy of EC law, which, together with theprinciple of direct effect, constitutes the cornerstone of the Communitylegal order. It held that, in the event of a conflict between national law anddirectly effective Community law, the latter should prevail. The Court

applied this principle in the framework of EC competition law in Wilhelmv. Bundeskartellamt.33 Moreover, Article 10 EC imposes on Member Statesan obligation to refrain from enacting any measures that could jeopardisethe attainment of the objectives of the Treaty.34

In Wilhelm v. Bundeskartellamt35 the Court considered the issue of theconcurrent application of national competition law and EC competitionlaw. In that case, the German Federal Cartel Bureau (Bundeskartellamt)investigated and fined a group of undertakings, which had engaged inprice fixing, pursuant the German Law against Restraint of Competition

(GWB). A few months before the final decision of the Bundeskartellamt,the Commission commenced proceedings against the same undertakings,under Article 81(1) EC. The main argument of the undertakings before thenational court was that the Bundeskartellamt could not continueproceedings for an offence which was being simultaneously investigated

by the Commission.The Court recognised that the same agreement could be subject to

parallel proceedings and, therefore, that national competition law and ECcompetition law could apply concurrently to it. This could be the case

provided that a parallel application did not prejudice the uniformapplication, throughout the Common Market, of the Community rules oncartels and the full effect of the acts adopted in implementation of those

32 Case 6/64 [1964] ECR 585, [1964] CMLR 425.33 Case 14/68 [1969] ECR 1, [1969] CMLR 100, at paragraph 6 of the judgment.34 This has been interpreted by the Court as follows: Whilst it is true that the rules on

competition are concerned with the conduct of undertakings and not with nationallegislation, Member States are none the less obliged under the second paragraph of Article5 [now 10] of the Treaty not to detract, by means of national legislation, from the full anduniform application of Community law or from the effectiveness of its implementingmeasures; nor may they introduce or maintain in force measures, even of a legislativenature, which may render ineffective the competition rules applicable to undertakings (Case 229/83, supra n. 23, at paragraph 14 of the judgment).

35 Case 14/68, supra n. 33.


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rules.36 It would follow from this that parallel proceedings are possible aslong as the Commission and the national authorities do not issueconflicting decisions. In Wilhem v. Bundeskartellamt,37 there was no conflict

because both the Commission and the national competition authority had

reached the conclusion that the agreement ought to beprohibited. But in theevent of a conflict, should national authorities always give priority to theCommissions view? The principle of supremacy of EC law and the state-ment in Wilhelm would seem to dictate this conclusion, but considerabledebate has surrounded the issue.

On the one hand, it seems clear from the judgment that if theCommission reaches the conclusion that an agreement (in the context ofArticle 81 EC) or abusive practice (in the context of Article 82 EC) should

be prohibited, then the national authority should not reach a different

conclusion.38 If a national competition authority could authorise anagreement that the Commission had prohibited, this would effectivelymean that the force of Community law could vary from one Member Stateto another, thereby jeopardising the attainment of the objectives of theTreaty.39 The Commission explained this in very clear terms in its Notice onco-operation between national competition authorities and the Commission:

Where an infringement of Articles 85 [now 81] or 86 [now 82] is established byCommission decision, that decision precludes the application of a domestic

legal provision authorising what the Commission has prohibited. The objectiveof the prohibitions in Articles 85(1) [now 81(1)] and 86 [now 82] is to guaranteethe unity of the Common Market and the preservation of undistorted com-petition in that market. They must be strictly complied with if the functioning ofthe Community regime is not to be endangered.40

On the other hand, if the Commission finds that an agreement is notrestrictive of competition or exempts it, could the national authority applystricter national law and prohibit the agreement? Could it be arguedthat the application of stricter national law poses no danger to the

fundamental objectives of the Treaty and therefore should be allowed?41 In36 Case 14/68, supra n. 33, at paragraph 5 of the judgment.37 Case 14/68, supra n. 33.38 Even where national and EC competition law is similar or identical, if the Commission

reaches the conclusion that an agreement should be prohibited, national courts may notdecide otherwise (see Case 298/83 CICCE v. Commission [1985] ECR 1105,[1986] 1 CMLR486, at paragraph 27 of the judgment).

39 In this respect, see also COSTA v. ENEL (Case 6/64, supra n. 32, at p. 594).40 OJ [1997] C 313/3, [1997] 5 CMLR 884.41 See K. Markert, who considered this possibility in detail in Some legal and administrative

problems of the co-existence of Community and national competition law [1974] CMLRev92 at pp. 968. See also the Opinion of AG Roemer in Wilhelm v. Bundeskartellamt (Case 14/68, supra n. 33). He took the view that in this case there would not be a real conflict betweenCommunity and national law because the fundamental objectives of the Treaty would not

be threatened (at. pp. 234).


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Bundeskartellamt v. Volkswagen42 the Commission and Advocate GeneralTesauro43 vigorously defended the view that national authorities shouldnot be able to prohibit an exempted agreement. Any other conclusionwould be at variance with the principle of supremacy of EC law and

would undermine the uniform application of Community law. Un-fortunately, the Court did not consider the issue in this case, andclarification remained necessary.

Article 3 of the new draft enforcement regulation,44 however, has finallyaddressed this issue by taking the bold step of regulating the relationship

between national and EC competition law. It provides that where anagreement or practice may affect trade between Member States, Com-munity competition law shall apply to the exclusion of national com-petition laws. In other words, the draft regulation introduces the view

that the concurrent application of EC and national law should be avoidedand that, if an agreement or practice might have an effect on Communitytrade, national competition authorities should refrain from applyingnational competition law and should apply exclusively EC competitionlaw. The Explanatory Memorandum to the Draft Regulation justifies thisapproach on the need to ensure a level playing field throughout theCommunity and on the protection of the single market ideal of the Treaty.It points out that it is inconsistent with the notion of a single market thatagreements and practices capable of affecting cross-border trade should be

subject to different standards and that agreements which would beconsidered innocuous or beneficial under Community law can be pro-hibited under national competition law.45

This development is to be welcomed as it resolves the uncertainties thatfollowed the judgment in Wilhem v. Bundeskartellam.46 One problem thatmay arise, however, is that the requisite effect on intra-Community trade,although fairly straightforward in principle, is not always easy to ascertainin practice.47

1.7 The common elements in Articles 81 and 82 EC

Three issues, common to both Articles 81 and 82 EC, deserve specificcomment before these provisions are examined in detail in Chapters 2 and3 respectively.

42 Case C-266/93 [1995] ECR I-3477, [1996] 4 CMLR 478.43 See Case C-266/93, supra n. 42, at paragraphs 501 of his Opinion.44 See supra n. 10 and infra Chapter 4, section 4.4.3.45 See the Explanatory Memorandum to the Draft Regulation (supra n. 10), section 4, The

Regulation, Article by Article).46 Case 14/68, supra n. 33.47 See further infra Chapter 2, section 2.2.2.


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1.7.1 The notion of undertaking

Both Articles 81 and 82 EC apply to the behaviour of undertakings but,unsurprisingly for EC Treaty provisions, the term is not defined. Lack of

definition is not uncommon in the Treaty. For example, in the field of freemovement of goods and persons, no definition is given by the Treaty tokey concepts, such as measures having equivalent effect to quantitativerestrictions in Article 30 EC, or the notion of a worker in Article 39 EC.These concepts have been rendered meaningful by the case law of theEuropean Court. 48

The Court generally construes the notion of undertaking very widely.InHfner v.Macroton,49 the Court defined an undertaking as every entityengaged in an economic activity regardless of the legal status of the entity

and the way in which it is financed.

50

This wide interpretation has variousimplications.First, not only companies but also natural persons can constitute

undertakings, as the Court has ruled in several of its decisions.51 Secondly,the Court has also made it clear that the term undertaking designates aneconomic unity for the purposes of the subject-matter of the agreement,even if in law that economic unit consists of several persons, natural orlegal.52 This means that several independent undertakings with separatelegal personalities may constitute only one undertaking for the purposesof EC competition law. Thus a parent company and its subsidiary,53 or

48 See, for a definition of measures having equivalent effect to quantitative restrictions,Procurer de Roi v. Dassonville (Case 8/74 [1974] ECR 837, [1974] 2 CMLR 436, at paragraph5 of the judgment); for a definition of work and of a worker, see Levin v. Staatssecretaris van

Justitie (Case 53/81[1982] ECR 1035, [1982] 2 CMLR 454, at paragraph 17 of the judgment)and Lawrie-Blum v. Land Baden-Wrttemberg (Case 66/85 [1986] ECR 2121, [1987] 4 CMLR389).

49 Case C-41/90 [1991] ECR I-1979, [1993] 4 CMLR 306.50 Ibid., at paragraph 21 of the judgment. The Commission has consistently adopted this

definition (see Commission Decision 92/521/EEC Re Distribution of package tours during the1990 World Cup, OJ [1992] L 326/31, [1994] CMLR 253, at paragraph 43 of the Decision).

51 See Case 170/83Hydrotherm v.Andreoli [1984] ECR 2999, [1985] 3 CMLR 224 at paragraph11 of the judgment. See also Case 258/78 Nungeser and Eisele v. Commission [1982] ECR2015, [1983] 1 CMLR 278.

52 See Case 170/83, supra n. 51, at paragraph 11 of the judgment.53 See ICIv. Commission (Case 48/69 [1972] ECR 619, [1972] CMLR 557), a case under Article

81 EC, where the Court held: The fact that a subsidiary has separate legal personality isnot sufficient to exclude the possibility of imputing its conduct to the parent company.Such may be the case, in particular where the subsidiary, although having separate legalpersonality, does not decide independently upon its own conduct on the market, butcarries out, in all material respects, the instructions given to it by the parent company (atparagraphs 1323 of the judgment). In Commercial Solvents v. Commission (Joined Cases 6and 7/73 [1974] ECR 223, [1974] 1 CMLR 309), a case under Article 82 EC, the Court tookthe same view, i.e. since it was clear that the parent company exercised a power of controlover the subsidiary, the two would be considered as a single economic entity.


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54 See Shell v. Commission (Case T-11/89 [1992] ECR II-757) at paragraphs 31112 of thejudgment.

55 See Case T-11/89, supra n. 54, at paragraph 311. In this case the Court went even further, asit held that not only the Shell Group operating companies (in charge of manufacturing andsales) constituted a single economic unit, but also that one of Shells service companies (incharge of planning and coordination of the activities of the Shell Group) also was part ofthe same economic unit.

56 Case T-6/89 [1991] ECR II-1623.57 Ibid., at paragraph 237 of the judgment.58 Cases 2930/83 [1984] ECR 1679, [1985] 1 CMLR 688.59 Ibid., at paragraphs 79 of the judgment.

several companies belonging to the same group,54 might be treated as oneundertaking. The defining criterion for treating a parent and its subsidiaryas a single undertaking is that the subsidiary should act under thedirection or control of the parent company. In the case of treating a group

of companies as one undertaking it is whether the group constitutes aunitary organisation of personal, tangible and intangible elements whichpursues a specific economic aim on a long-term basis.55 Finally, changes inthe corporate structure of an undertaking do not allow parties responsiblefor an infringement to escape liability. For example, in EnichemAnic v.Commission,56 the Court of First Instance made it clear that where anundertaking that committed an infringement of the competition rules hasceased to exist in law at the time when it must answer for that infringe-ment, it is necessary first to find the combination of physical elements

which contributed to the commission of the infringement and then toidentify the person who has become responsible for their operation.57

Similarly, in Compagnie Royale Asturienne des Mines v. Commission,58 theCourt upheld the Commissions view that when an undertaking succeedsanother that has committed an infringement of EC competition, the formerwill remain liable for the behaviour of the latter, when from an economicpoint of view the two are identical.59

1.7.2 The jurisdiction of the Commission to applyArticles 81 and 82 EC

Both Articles 81 and 82 EC prohibit practices that distort competitionwithin the Common Market. This clearly means that the Commission doeshave jurisdiction to prohibit agreements or abuses of dominant position

by undertakings established in the Common Market. But does it have thepower to apply the EC Treaty competition provisions extraterritorially?The case law has shed light on this important issue.

First, in cases where a parent company is established outside the

Common Market but its subsidiary is established within the CommonMarket, the Court has consistently held that the Commission can address


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a decision to the parent company concerning the anti-competitivebehaviour of its subsidiary. For example, in ICIv. Commission (Dyestuffs),60

a case decided before the United Kingdom acceded to the EuropeanCommunity, the applicant had its registered office outside, but sub-

sidiaries within, the Common Market and it objected that the anti-competitive conduct of its subsidiaries was imputed to it by theCommission. The Court took the view that the Commission had juris-diction to do so, on the basis that the parent company and its subsidiariesconstituted one economic unity for the purposes of EC competition law.In other words, it was clear that the parent company had a decisiveinfluence on the policy of its subsidiaries.61 An analogous conclusion wasreached, within the framework of Article 82 EC, in Commercial Solvents v.Commission.62 Interestingly, however, Advocate General Mayrs, in his

Opinion in ICI v. Commission,63 had not suggested this approach, for hethought that, taken to the extreme, it would amount to denying anysubstance to the legal personality of the subsidiaries.64 He suggestedinstead that the defining criterion should be that the anti-competitivepractice in question has effects within the Common Market. This is knownas the doctrine of effects, which has been intensely debated in publicinternational law. In its purest form, it implies that a state has jurisdictionover activities of non-nationals abroad where these have effects within itsterritory.65 Advocate General Mayrs suggested that this doctrine should

apply in the framework of EC competition law, subject to certain con-ditions. In particular, only where the effects of anti-competitive practiceswithin the Community were direct and immediate, reasonablyforeseeable andsubstantial, would the Commission have jurisdiction to apply ECcompetition law to undertakings not established in the Community.66

The Court was able to avoid considering the application of the doctrineof effects in cases involving parent companies established outside, butwith subsidiaries within the Common Market, by using the economicunity approach. However, it was only a matter of time before a case arose

in which the companies responsible for the infringement had nosubsidiaries within the Common Market, such as in the case ofAhlstrm

60 Case 48/69, supra n. 53.61 Ibid., at paragraphs 1337 of the judgment.62 Joined Cases 6 and 7/73, supra n. 53.63 Case 48/69, supra n. 53.64 Ibid., at p. 693.65 See United States v.Alcoa, 148F 2d 416 (2 Circ. 1945).66 Ibid., at pp. 6934. This mitigated form of the doctrine of effects is also based on American

law, where it was put forward as a reaction to the criticism levelled at the absolute form ofthe doctrine inAlcoa (see the Opinion of AG Darmon inAhlstrm and others v. Commission(Woodpulp I) (Joined Cases 89/95, 104/85, 114/85, 116117/85, 125129/85 [1988] ECR5193, [1988] 4 CMLR 901) at paragraphs 3246 of his Opinion, where he summarises theprinciples in US law).


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and others v. Commission (Woodpulp I).67 The Commission found thatvarious Scandinavian, Canadian and North American producers ofwoodpulp were in breach of Article 81(1) EC. Several of them argued

before the Court that the Commission had no jurisdiction to apply EC

competition rules to them. Advocate General Darmon endorsed as ajurisdictional criterion the qualified form of the doctrine of effectssuggested by Advocate General Mayrs in ICIv. Commission.68 The judg-ment of the Court was terse and did not explicitly embrace the doctrine ofeffects. The key paragraph of the judgment reads as follows:

It should be observed that an infringement of Article 85 [now 81], such as theconclusion of an agreement which has had the effect of restricting competitionwithin the common market, consist of conduct made up of two elements, the

formation of the agreement, decision or concerted practice and the imple-mentation thereof. If the applicability of the prohibitions laid down undercompetition law were made to depend on the place where the agreement,decision or concerted practice was formed, the result would obviously be togive undertakings an easy means of evading those prohibitions. The decisive

factor is therefore the place where it is implemented [emphasis added].69

Accordingly, the Court decided that the Commission had jurisdiction onthe basis that the practice had been implemented in the Common Market.The judgment left open the question whether the implementation test

was substantially identical to the qualified doctrine of effects describedabove.

The recent decision of the Court of First Instance in Gencor v.Commission,70a merger case, has the potential to resolve the debate aboutwhether these two jurisdictional tests are one and the same. The caseconcerned a proposed merger between a South African company and acompany incorporated under English law. The Commission declared thatthe proposed concentration was incompatible with the Common Market.Gencor, the South African company, argued that the Commission had no

jurisdiction to do so, as the merger had originated and would have beenimplemented in South Africa. The Court of First Instance held that theapplication of the EC Merger Regulation71 would be justified when it wasforeseeable that the merger would have an immediate and substantial effect inthe Community.72 Thus, the Court adopted almost verbatim the sug-gestions

ec competition law and policy albertina albors

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