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The Interplay between European and National Competition Law after Regulation 1/2003

The Interplay between European and National Competition Law after Regulation 1/2003
Author: Lúcio Tomé Feteira
Publisher: Kluwer Law International B.V.
Total Pages: 362
Release: 2015-12-08
Genre: Law
ISBN: 9041156658
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If we can speak of the European Community's 'economic constitution', we can assert that competition rules, together with free movement rules, form its core. Notably, implementation of the competition rules enshrined in Articles 81 and 82 EC changed radically with the enactment of Regulation 1/2003, which in effect dispensed with mandatory prior notifications and allowed national authorities to apply Article 101(3) TFEU directly. Given that national legislations perceive certain types of unilateral conduct, even if adopted by a non-dominant undertaking, as a potential source of anticompetitive effects, an important question concerns the leeway enjoyed by national authorities under the exception to the convergence rule in Article 3(2) of Regulation 1/2003, and the consequent effect on both legal practice and policy issues. In this lucidly argued book, focusing on national competition provisions in Germany, France, Italy, and the United Kingdom that deal with such conduct, the author provides a detailed examination of how such considerations as the following are affected by Regulation 1/2003: - prohibition of abuse of economic dependence or superior bargaining power; - the particular susceptibility of long-term contracts; - prohibition of resale at a loss or below cost; - prohibition of boycott, unlawful pressures, threats, and other coercive tactics adopted by undertakings; and - the role of unfair competition law. The analysis follows a functional method of comparative legal analysis, reviewing the most relevant norms in the selected jurisdictions, particularly in what concerns their goals and function in the context of their respective legal systems. Special attention is paid to two specific sectors – the motor-vehicle and the retailing industries – which have most often triggered relevant legislation and case law in the jurisdictions covered. Legal scholarship in the field is also drawn upon. In its clarification of the meaning of Regulation 1/2003, this book allows practitioners to fully grasp its scope. The author's thorough, masterful analysis of the statutory framework of Article 3 of the regulation also reveals the variety of reasons why different Member States have different competition policies on the scope of the exception to the rule of convergence, and in this way provides lawyers, policymakers, and academics with welcome insights on how major EU jurisdictions apply European competition law.

"United (should) We Stand?"

Author: João Lúcio Tomé Féteira Dias Santos
Publisher:
Total Pages: 509
Release: 2012
Genre: Antitrust law
ISBN:
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The enactment of Regulation 1/2003 radically changed the rules for the application of Art. 101 and Art. 102 TFEU, replacing the existing system of prior administrative authorisation by one of a directly applicable exception coupled with the possibility of national authorities applying Art. 101(3) TFEU. Concerns over substantial consistency in the application of European competition law ("ECL") were the main reason for the introduction of the so-called rule of convergence under Art. 3 of Regulation 1/2003. Although Art. 3 expanded and gave statutory weight to the assertion of supremacy of ECL over national competition law ("NCL"), initially acknowledged in the Walt Wilhelm judgement, it did not rule out completely the possibility of Member States applying stricter NCL to unilateral conduct adopted by undertakings (Art. 3(2) second sentence). Prima facie, the exception would cover national provisions prohibiting the abuse of economic dependence/superior bargaining power, resale below cost/at a loss, as well as some types of unilateral conduct not related to economic dependence (e.g. boycott). An inquiry into four selected jurisdictions (France, Germany, Italy and the UK) reveals that not all national provisions whose primary goal is "the protection of competition on the market" (Rec. 9 of Regulation 1/2003) should be taken as a legitimate manifestation of plurality compatible with the concerns over substantive consistency mirrored in Art. 3(2) second sentence. The primary reason for this selective approach is that some national provisions, in particular those that prohibit per se resale below cost/at a loss, want a valid economic rationale for the purpose of competition law. Conversely, other stricter national provisions may be regarded as performing a complementary role vis-à-vis ECL, as it may be the case of the prohibition of economic dependence applied to the automotive and food-supply sectors. Despite the substantial changes introduced by Art. 3 in the relationship between ECL and NCL, Art. 3(2) second sentence can be regarded as a continuation of the case law inaugurated by the Walt Wilhelm judgement, recognising, albeit in more limited terms, that "unitas in diversitate" is an integrating part of competition law.

On Free and Fair Competition

On Free and Fair Competition
Author: Lúcio Tomé Feteira
Publisher:
Total Pages: 43
Release: 2018
Genre:
ISBN:
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Despite the increasingly market-friendly approach to unfair competition law (UCL) adopted by EU law, the protection of competitors from unfair trading practices (B2B) remains a salient feature in certain jurisdictions. Such a feature can be the source of tension with European law on at least two accounts: on the one hand, the harmonisation of unfair competition at the EU level and its (un)intended constraining effects upon national regulation of B2B commercial practices; on the other hand, the convergence of national competition laws under Article 3 of Regulation no. 1/2003 vis-à-vis unfair unilateral conduct adopted by non-dominant undertakings. Behinds such tension stands an indirect conflict (diagonal conflict) between EU and national law that is highly, though not exclusively, dependent upon the national approach to UCL. This contribution deals with these topics in two separate parts that can be read as independent pieces depending on the reader's interests and patience. The first part (I-III) consists of a comparative analysis of three (for the time being) Member States (the UK, France and Germany) whose legal systems (British common law, and French and German law) can be taken as having paradigmatic interest in what concerns different takes on unfair competition and, consequently, on the interplay between the latter and competition law. The second part (IV and V) will address the impact of EU law on the previous topics, focussing on the Europeanisation of UCL through the Unfair Commercial Practices Directive (UCPD) and the convergence of national competition laws brought about by Regulation no. 1/2003. One of the conclusions to be drawn is, it seems, that the combined effect of these two layers of EU law does not favour the protection of competitors from B2B unfair commercial practices, nor does it look too kindly upon an integrated approach to unfair competition and competition law.

Competition Law in the EU

Competition Law in the EU
Author: Johan W. van de Gronden
Publisher: Edward Elgar Publishing
Total Pages: 500
Release: 2021-02-26
Genre: Law
ISBN: 1788974751
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This incisive textbook enhances understanding of EU competition law, exploring significant substantive and enforcement issues relating to antitrust, merger control and state aid law. Providing an examination of well-established doctrines, landmark judgements and the impact of recent developments, this textbook also emphasises the importance of the interplay between domestic and European competition law by discussing national competition rules and frameworks.

European Competition Law

European Competition Law
Author: Lennart Ritter
Publisher: Kluwer Law International B.V.
Total Pages: 1248
Release: 2005-01-01
Genre: Law
ISBN: 9041122583
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No branch of European law has been as subject to expansion and change as competition law. Between the enormous forces of globalisation, technology, and EU enlargement, the Commission and national competition authorities have been compelled to keep rethinking their practices and procedures and issuing new regulations. Now, in the wake of its highly acclaimed predecessors, the new Third Edition of European Competition Law offers the practitioner everything required to act in accordance with the latest developments in the field. Along with the thorough guide to continuing practice that its readers have come to expect, European Competition Law in its Third Edition fully covers such areas as the following: the Commission's new assessment of distribution practices and vertical restraints, in particular the block exemptions granted by Regulations 2790/1999 and 1400/2002; procedure before national competition authorities and national courts for enforcement of European rules under Regulation 1/2003; the new Merger Control Regulation in force as of 1 May 2004; the new Transfer of Technology Regulation; and, the increased fines for hard-core cartel practices or abuse of dominant market position. The Third Edition is remarkable in that it actually previews the substantive and procedural rules that will be coming into effect during 2004 and subsequent years. And, like prior editions, the work has no peer in its coverage of past administrative practice and the case law of the Court of Justice. All in all, European Competition Law, Third Edition, will be of immeasurable value to practitioners who need to keep informed about how EC competition laws are applied, so they can continue to render practical, meaningful advice to firms whose agreements, transactions and conduct in the marketplace are governed by competition rules.

Bellamy & Child

Bellamy & Child
Author: David Bailey
Publisher: Oxford University Press, USA
Total Pages: 0
Release: 2018
Genre: Law
ISBN: 9780198794752
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Competition Law and Policy in the EU --Article 101(1) --Article 101(3) --Market Definition --Cartels --Non-Covert Horizontal Cooperation --Vertical Agreements Affecting Distribution or Supply --Merger Control --Intellectual Property Rights --Article 102 --The Competition Rules and the Acts of Member States --Sectoral Regimes --Enforcement and Procedure --Fines for Substantive Infringements --The Enforcement of the Competition Rules by National Competition Authorities --Litigating Infringements in National Courts --State Aids.

Boosting the Enforcement of EU Competition Law at the Domestic Level

Boosting the Enforcement of EU Competition Law at the Domestic Level
Author: Anne Looijestijn-Clearie
Publisher: Cambridge Scholars Publishing
Total Pages: 205
Release: 2017-05-11
Genre: Law
ISBN: 1443891495
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The role of the EU competition law rules in shaping the EU Internal Market can hardly be overstated. The EU substantive rules dealing with cartels, abuse of dominance and State aid have ensured, in the past decades, a much desired unity of the law applied in the diverse European markets. Yet, much of the success of the EU competition law provisions depends on its practical enforcement. The proliferation of competition law enforcement, especially since 2004, stands testimony in this respect. However, this has not come without challenges. In this context, this book aims to critically discuss certain key elements relating to the domestic enforcement of the said rules, in order to place the discussion of further boosting this enforcement exercise in the correct context. This book aims, in this respect, to find an answer to the following question: to what extent would boosting the domestic enforcement of the EU competition law rules aid the ambition of more forceful, better targeted and more resource-efficient EU competition law enforcement in the Internal Market? Topics such as the following are discussed in the contributions included in this book: the sufficiency of the enforcement toolbox of national competition authorities, the interaction between fundamental rights and competition law, and the duties of domestic bodies in this context.

Relying on EU Soft Law Before National Competition Authorities

Relying on EU Soft Law Before National Competition Authorities
Author: Oana Andreea Stefan
Publisher:
Total Pages: 0
Release: 2013
Genre:
ISBN:
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Instruments deprived of legally binding force according to Article 288 TFEU -- notices, guidelines, communications, etc. -- have been issued in EU competition law since the 1960s. Bearing a vast variety of names and coming in different forms, all these instruments can be gathered under the umbrella notion of "soft law." As experienced in international law contexts, the legal or practical effects that soft law can produce in the absence of legally binding force remain rather unclear, which makes the enforceability of such instruments problematic. This is particularly worrying given the current system of EU competition law enforcement. Following Regulation 1/2003, the enforcement of EU competition law occurs in a multi-level setting, with cases being dealt with at the national or at the European level by authorities organized within the European Competition Network ("ECN"). In this context, national competition authorities, national courts, and the European Commission are all called to apply EU Treaty provisions and EU secondary legislation to competition cases. However, while the European Commission is required to observe EU notices and guidelines in the cases it deals with, no such obligation exists for national competition authorities. This might result in inequality of treatment alongside the ECN, as individuals involved in cases decided at the central level may expect guidelines and notices to apply, but are not entitled to expect the same should their case be treated nationally. In the recent Expedia case the Court of Justice of the European Union ("CJEU") failed to address this inequality, while favoring a large margin of discretion and autonomy for national competition authorities in the enforcement of EU law. The case exposes the tension between, on the one hand, the need to accommodate diversity in the enforcement of EU competition rules by respecting the autonomy of national competition authorities operating within the ECN and, on the other hand, the imperative to preserve legal certainty for individuals, as well as effectiveness and consistency in the application of EU law.

Accession to the EU's Competition Law Regime

Accession to the EU's Competition Law Regime
Author: Kati Cseres
Publisher:
Total Pages: 0
Release: 2013
Genre:
ISBN:
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Competition law has always formed a core pillar of the European integration process and so it was among the crucial EU requirements set for the candidate countries. Competition law had a significant influence on the way competition laws and institutions were shaped in the candidate countries. In the pre-accession phase this was due to conditionality, however once conditionality terminates and candidate countries become Member States they fall under the EU law and its governance mechanisms, in competition law under Regulation 1/2003. While pre-accession rule transposition is well documented and closely monitored by the EU in its Regular Reports on the candidate countries, the EU's internal governance mechanisms are less visible and have not been examined in the light of its external model that developed in the course of its eastward enlargement. In EU competition law such internal mechanisms have developed within the framework of Regulation 1/2003. These post-accession compliance mechanisms are critical both with regard to the effectiveness of the EU's external governance and the internal system of Regulation 1/2003. The aim of this paper is to analyse the interplay between the EU's external (pre-accession) and internal (post-accession) governance model in the field of competition law and to arrive at a deeper understanding of the EU's Europeanization strategy at the intersection of the external and internal governance models. Accordingly, the paper maps the EU's external law and governance model that applies vis-à-vis third countries that wish to join the EU and examines to what extent and how this external model has shaped the EU's internal governance model vis-à-vis its Member States. It analyses the role of Regulation 1/2003 in creating an effective implementation of EU competition law in the Member States and its governance mechanisms that framed the Europeanization process. In order to evaluate the effectiveness of post-accession compliance in the Member States the paper examines the compound procedural framework composed of EU and national administrative rules that underlies and challenges the enforcement of EU competition law and investigates how administrative capacity of the national competition authorities may effect competition law enforcement. This inquiry includes the detailed assessment of the European Competition Network as the EU's main mechanism to monitor compliance of Member States with EU law in the post-accession phase.

The Reform of EC Competition Law

The Reform of EC Competition Law
Author: Ioannis Kokkoris
Publisher: Kluwer Law International B.V.
Total Pages: 626
Release: 2010-01-01
Genre: Law
ISBN: 9041126929
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This book represents a fresh approach to EC competition law - one that is of singular value in grappling with the huge economic challenges we face today. As a critical analysis of the law and options available to European competition authorities and legal practitioners in the field, it stands without peer. It will be greatly welcomed by lawyers, policymakers and other interested professionals in Europe and throughout the world.