Those are complete notes from all the classes of the EU competition law classes. They are very complete (even though there might be some spelling faults here and there). I got a 16/20 at this exam so, there are complete and there are all you need to bring with you at the exam!
Importance of preparing classes: preparatory work for every class!!
→ Good to know before hand what the cases are about
→ Improve our capacity to distinguish what is essential and what is not
EXAM: 2 main parts
→ Classic written exam in june (2h30)
o To test our capacity to apply the concept that we have seen in class to different scenarios (they
will never replicate at 100% a case seen in case, it will take various aspects of multiple cases seen
AND it is important to be able to make links between different parts of the course)
o With sub questions for each case
o Open book exam!!! (not allowed: access to the internet and case books and handbooks on EU
competition law)
▪ Important thus to be precise in the answer
→ Permanent evaluation that is divided in 2
o Individual assignment consisting in the drafting of a case note
▪ It is not an in dept analysis of a case
▪ It is a summary of a case with a section in which we reflect our personal view (is it logical
with other cases, regulations, …) regarding the relevant of the case in a more global
perspective of EU law
▪ 2000-2500 words (4-5 pages)
▪ 30% of the global note
▪ Due date: 3 may (midnight)
▪ The idea is to test the capacity to understand the case and to test our capacity to identity
and focus on what is really important in all those cases
▪ We may use literature to nourish our own thoughts about the case (like law journal)
▪ We should focus on the clarity and sharpness of our summary and the quality and
relevant of our personal critical view about the case
o Opinion briefs and presentation of them
▪ This is a group exercise (6-7)
▪ We will be assigned a topic that could be a case BUT also a development in legislative or
soft law area
▪ We have to draft an opinion brief in which we are free to adopt the stance that we think
is the most relevant or appropriate (we can also divide the team into 2 and making one
pro and the other against)
▪ We can be original!
▪ Between 1200 - 1500 words
▪ Due date: 19th April (midnight)
▪ 3rd May: group presentations of those opinion briefs
• Should be 10min (max)
• Not obliged all student to take the floor during the main presentation BUT then
it means that the person who have not talk will have to answer questions
following the presentation
▪ All of the other group must read of all the opinions briefs so that we can ask questions
▪ All of this counts for 20% of the total mark (homogenous among the group)
2
, INTRODUCTION
EU competition law| Anna Sonnenschein
If we speak about competition law, we are mainly speaking of an area governed by EU law
→ EU law certainly covers the main aspect of competition law (even though not all)
1. The historical nature of competition law in the treaty
It was among the very original competences of the union and the rules now contained in art 101 and 102 TFEU
(=antitrust rules) were among the very few substantive rules in the treaty of Rome in 1958 (besides the
fundamental freedoms and the internal market)
→ Those antitrust rule who take the form of 2 prohibitions where already contained in the original treaties
2. What are these rules about?
Both rules are prohibitions
→ Art 101: prohibit agreement or concerted practices between undertakings that undermine the proper
functioning of competition (=having an anti-competitive dimension)
→ Art 102: covers unilateral practice of a dominant undertaking that must be regarded as abusive
We can already underline 3 important things here
◊ 1°: The prohibition in 101 must be conceived informally
you do not need an agreement writing or a civil contract, it also covers informal exchanges that must be
regardless as inappropriate for a smooth functioning of competition
→ => functional nature (it cannot be limited to just contract)
◊ 2°: Abuse of dominance means that what EU law takes issues with is not dominance itself
Dominance itself could be the legitimate product of competitiveness and of efficient tactics
→ BUT what is problematic is that dominance can give so much power in the market that the dominant
company may start to behave in such a manner to manipulate and distort the market
BUT there is a provision in the treaty that provides for a legislative competition to adopt distinct and
supplementary rules
→ Ex: merger regulations which aim to exercise control on the emergence of dominance of the market that
could be such off to reduce the degree of regulation and to have a harmful impact on the market on the
longer term (only secondary law!!)
◊ 3°: The central nature of the concept of undertaking in those provisions
The concept of undertaking is central for EU competition law
Undertaking is a concept that must legally be distinguished from company or legal person
→ There is no harmonization of the form taking by legal persons in the MS
→ We have the European company BUT apart from that, the form of company is determined at national
level
So this was a first point to overcome: EU competition law must be binding irrespective of their company law
→ We are dealing with behavior of companies on the market that have supposedly a negative impact on
the market and thus the consumers SO there could be a temptation to manipulate the form that they
take for the purpose of limiting their liability under competition law
3
, EU competition law| Anna Sonnenschein
The concept of undertaking is also important in the broad sense of competition law, mainly for state aid
→ State aid = related to action on the part of state directed at creating an economic advantage for
undertaking (art 107)
→ In principle, granting an advantage to an undertaking that has a selective nature is seen by the treaties
as incompatible with EU law
o BUT there are a very large number of exceptions
o Here again, the concept of undertaking is key because the beneficiary of a state aid that is invalid
is precisely an undertaking and not a company
How do we then target those undertaking effectively? You do have to target companies
→ Since undertaking are targeted, it could be that an undertaking is composed by 4 companies (one parent
and 3 subsidiaries)
3. Coherence between antitrust rule and internal market
rules
PURPOSE OF INTERNAL MARKET = fundamental freedoms (already substantive rules contained in the treaties)
→ Their purpose is to lead to competitiveness
→ competitiveness is a construct under which the positioning and the success of undertaking is determined
exclusively by the quality and the price of the offer that they put on the market
o the undertakings’ success on a market depends only on those factors, independently of where
there are located
o to achieve that objective of undertaking being able to compete exclusively on the quality of their
product and the cost on which they can compete means that you need to get rid of physical
barriers (you can no longer have boarders in order to achieve internal market)
→ to achieve this objective of a market that is determined by comparative advantage it is also important to
avoid protectionism (which could take the form of state aid)
and we can see that antitrust have the same objective: avoiding distortion of the market
→ BUT we are talking about actions on the part of undertakings
→ Market operators themselves may behave in a way that distorts the market: they can do that by entering
into inappropriate discussions to organize themselves among a given group to make sure that they will
no longer entirely compete based on the quality of their product BUT instead based on artificial,
geographical distribution of the market
o Ex: I promise that I will not propose my services in that part of the EU, that is your territory BUT
as a counterpart, you promise not to compete me where I am
o OR they can manipulate contracts with the consumer by for instance proposing a price that they
know the consumer will refuse to lead him somewhere else with the result that the consumer
pays more than in a situation where all market operators have quotes blindly
→ The harm caused by collusion is detrimental mostly for customers
→ BUT the harm could also be for the MS and the EU in term of competitiveness because by artificially
distorting competition, operates as a disincentive for innovation
We are describing the system as it is BUT we are not arguing that there are not external negativities in this
system
→ The liberal conception of the economy is not the only possible way of approaching competition law BUT
it is the system as it stands now and there will be here and there possibilities for the commission to carry
out competition law taking into account other interest (ex: environment, public health, …)
4
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