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Case law EU competition lawLecture 1
1. GlaxoSmithKline Services Unlimited v. Commission
In this case the Court of Justice reaffirmed the importance of the single market imperative. Case was about a
dual pricing scheme, which contained sales conditions providing for dual pricing for supplies in Spain, with a
higher price being charged for sales for exports, so as to avoid the low prices imposed by Spanish regulation for
the domestic market.
The General Court stated in this case that, in the specific and unusual conditions in which pharmaceutical
products are bought and sold, an indirect export ban did not have its object the restriction of competition,
although it did restrict competition by effect. However the Court of Justice reversed the judgment of the general
court, repeating that an agreement aimed at prohibiting or limiting parallel trade has as its object the restriction
of competition, and that the principle applies to the pharmaceutical sector as it does to any other; the court added
that, in order to be found to restrict by object, it was not necessary to show that the agreement entailed
disadvantages for final customers. The General Court decided that indirect export bans don't have the object to
restrict competition, but do have this by effect. The ECJ didn't agree and ruled that there was an object of the
restriction of competition.
2. Football Association Premier League v. QC Leisure
This case was about the importation and use of foreign satellite decoder cards in the UK. The cards had been
issued by broadcasters authorized by FAPL to broadcast English football matches in their respective territories
only. The ECJ concluded that the terms of English Premier Leagues licenses with foreign broadcasters, which
prohibited the important into the UK from Greece of satellite broadcasts of life Premier League soccer games,
conferred absolute territorial protection, contrary to article 101(1) TFEU, and did not benefit from article 101(3)
TFEU.
Lecture 3
1. ECJ 45/85, Verband der Sachversicherer
Case about insurance. It was a situation in which the companies had competed very much and the premiums
were very low. The industry came together and had decided that they needed to agree to higher the premiums,
because otherwise they couldn’t pay for damages anymore.
This case was brought before the ECJ by the commission because the industry agreed to decide to higher the
premiums. The insurance argued that insurance is not a business in which competition law should apply: when
they would compete with each other there would namely be a race to the bottom. The ECJ answered stating that
there is no valid reason in the TFEU that says that the insurance industry should be exempted from competition
law. The distinction between the insurance industry and the other industries should however be taken into
account. Industries of insurance should be allowed to talk about premiums, but they are not allowed to talk
about how to calculate the premiums.
2. ECJ 519/04, Meca-Medina
Mr Meca-Medina and Mr Majcen are two professional athletics who compete in long-distance swimming.
During the World Cup in that sport they tested positive for Nandrolone (an anabolic substance). The Int.
Swimming Federation (FINA) suspended them under the Olympic movement’s anti-doping code for 4 year, a
term subsequently reduced to 2 years by the Court of Arbitration for sport. Those professionals filed a complaint
to the EU Commission alleging that the FINA rules on doping control were not compatible with the Community
rules on competition on freedom to provide services. So they were basically using competition law to escape the
doping findings. The Commission rejected the complaint.
The two men made a compliant against the International Olympic Committee that the adopted rules adopted by
the IOC concerning doping control were incompatible with the EU rules and freedom to provide services.
,ECJ of First Instance disagreed and held that doping was a sporting not a economic issue. The judgment was
appealed and the appellate court held that the court of First Instance had erred in law when it held that the anti-
doping rules at issue did not fall within the scope of Articles 49,81,82 of the EC Treaty. Secondly, they disputed
the assessment made by the Court of First Instance According to which anti-doping rules are purely sporting
rules and therefore fall outside the scope of EC Treaty. This essentially said that activity that takes the form of
paid employment for professionals or semi-professional sportsmen was covered under law in the treaty.
According to the sportsman sports is normally outside the application of the four freedoms, so also the freedom
of movement. Therefore it should also fall outside the scope of competition law. ECJ decided that the scope of
the application of the four freedoms and the scope of application of competition law can differ.
3. ECJ 138/11, Compass-Datenbank GmbH
In this case the Court futher defines concept of undertaking
In the EU and every country, if you start a business you have to register it. The purpose of the registry is if you
happen to do business with a company you can find information about the type of company you are dealing
with. In this case there is a problem. Austria set up the registry in a way that there is one entity that sets up the
database. Compass-Datenbank went into this public database and plucked it, just to put it in their own database
and sell it on the market. Austria didn’t agree with this conduct and stated that it was their database, and they
refused them to use the information in that way. Compass however saw this as an infringement of competition
law, an abuse of a dominant position.
The Court held that in the light of the entirety of case-law, a data collection activity in relation to undertakings,
on the basis of a statutory obligation on those undertakings to disclose the date and the powers of enforcement
related thereto, fell within the exercise of public powers. As a result, such an activity was not an economic
activity. The court also said, a public entity which created a database and which then relied on intellectual
property rights, did not act, by reason of that fact alone, as an undertaking.
4. Gen Ct Case T-319/99, FENIN
FENIN buys all the supplies for the dentists in Spain. The suppliers of dental products therefore had one buyer
in front of them. This is what the government of Spain decided, that there should only be one supplier for
dentists in Spain. The suppliers of dental products believed that there was an abuse under article 102, they
believed that there was an abuse of dominant power. FENIN believes that they fall within the solidarity
exception. They said that they have a social function: so dentists work well in Spain, they are non-profit and
therefore based on the solidarity principle.
The ECJ decided that they weren’t working on a economic basis, and they therefore can not be seen as
undertakings. So if you meet the criteria you fall under the solidarity exception and you are not an undertaking.
When you have a social function, based on the solidarity principle and it is a non-profit activity, there is a
solidarity exception.
5. ECJ 520/09 P, Arkema para. 37-52.
Summary of the paragraphs 37-52: The concept of an undertaking covers any entity engaged in an economic
activity, regardless of its legal status and the way in which it is financed. Court said, the term ‘undertaking’ must
be understood as designating an economic unit even if in law the economic unit consists of several natural or
legal persons, and that when such an economic unit consists of several natural or legal persons, and that when
such an economic entity infringes the competition rules, it is for that entity, according to the principle of
personal responsibility, to answer for that infringement.
The conduct of a subsidiary may be imputed to the parted company, although having a separate legal
personality. In a case where the parent company has 100% shareholding in a subsidiary which has infringed the
competition rules of the EU, then the parent company can (1) exercise a decisive influence on the conduct of the
subsidiary and (2) there is a rebuttable presumption that the parent company does in fact exercise such a
decisive influence. In those circumstances it is sufficient for the Commission to prove that the subsidiary is
wholly owned by the parent company and that the parent company exercises a decisive influence over the
commercial policy of the subsidiary. The Parent company is then jointly and severally liable for the payment of
the fine imposed on its subsidiary, unless the parent company, which has the burden of rebutting that
, presumption, adduces sufficient evidence to show that its subsidiary acts independently on the market. So if a
parent wants to escape the liability, they should show that the subsidiary has complete autonomy over its
economic decisions.
Lecture 4
1. ECJ 27/76 United Brands (para 12-35, 63-68)
A case about market definitions. United Brand is accused, they are selling Chiquita bananas. It is accused of
predatory pricing, refusal to apply etc. But at which market should we look, a broad or a narrow market. If we
are talking about bananas it is clear that they are in problems, but when they are talking about fruits (broader), it
isn't that clear. The applicant was arguing that bananas were in the same market as other fresh fruit, the court of
Justice said that this depended on whether the banana could be: singled out by such special features
distinguishing it from other fruits that it is only to a limited extend interchangeable with them and is only
exposed to their competition in a way that is hardly perceptible.
The question is: what do consumers do. UB looks at the product characteristics and product use. Do costumers
focus on bananas, or can it be a substitute? There is a certain amount of changeability. The ECJ decided that not
everyone can substitute with apples or oranges. For elderly and babies the soft texture is easy to eat, so they
aren't able to substitute bananas.
In UB the Court also defines what dominance means: a firm can behave without taking into account the
competitors, suppliers and consumers.
Lecture 5
1. ECJ C-56 and 58/64, Etablissement Consten SA & Grundig-Verkaufs-GmbH v. Commission
It this case it became clear that distribution agreements which prevent all parallel trade in the contract goods
have as their object the restriction of competition.
Constan and Grundig concerned an agreement concluded between Grundig, a German manufacturer of ratios,
tape recorders, Dictaphones and televisions and Consten. Consten was appointed exclusive distributor of
Grundig’s products in France. The agreement obliged Consten not to handle competition products, to order a
minimum quantity of Grundig products, to stock accessories and spare parts to provide aftersale services, and
not to sell Grundig products outside France. In return, Grundig agreed not to deliver the products outside
France. In return, Grundig agreed not to deliver the products for sale in France itself and to prohibit all other
distributors from seeking sales, actively or passively, within France. To reinforce the territorial protection
Grundig assigned to Conten the rights to the Grundig trade mark GINT, in France. The provisions in the
agreement were therefore intended to confer absolute territorial protection upon Consten and to prevent all
parallel trade in Grundi’s products. The parties argued that these restrictions on the conduct and/or the restriction
on the sale of Grundig products by anyone else in France did not amount the restrictions of competition.
The ECJ upheld the Commissions’ decision. It held that the agreement given Consten a monopoly over a sale of
Grundig products in France (absolute territorial protection) had as its object the restriction of competition so that
an assessment of its effect was unnecessary.
2. ECJ T-Mobile Netherlands BV
1 Companies come together and exchange information about the renumeration of dealers. The Dutch Competition
authority looked at this and the case was brought for the ECJ. Parties didn’t necessarily agree on the product, but
one party tells their price policy to the other party. There was a structured way to exchange information and the
other party used that information.
The ECJ decided that it must be sufficient that the agreement has the potential to have a negative effect in
competition. There was a breach of article 101(1) : there was a price coordination. It was an agreement by
object, as long as you can show that there is a causal link, the Dutch court is up to something.
2
3. ECJ GlaxoSmithKline Services Unlimited
Lecture 1
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