Germany/EU, 2005: Difference between revisions

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'''Score = 27'''
'''Score = 25'''


''Governed by:'' Articles 81 and 82 of the Treaty on European Union, and EU Regulation 1/2003, as well as national legislation.<ref>EU statutes and regulations available online from the European Competition  Network, at http://ec.europa.eu/comm/competition/ecn/documents.html</ref>
''Governed by:'' Articles 81 and 82 of the Treaty on European Union [hereafter EU Treaty], and European Commission Regulations 1/2003 [hereafter "CR 1/2003"] and 139/2004 [hereafter “CR 139/2004], as well as national legislation.<ref>EU statutes and regulations available online from the European Competition  Network, at http://ec.europa.eu/comm/competition/ecn/documents.html</ref>
   
   
{| class="wikitable"
{| class="wikitable"
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| Extraterritoriality
| Extraterritoriality
| 1
| 1
| Scope extends to foreign corporations.<ref>Goyder, D. G., EC Competition Law, 4th ed. 2003, at 99.</ref>
| EU law governs whenever conduct has effects on trade between Member States pursuant to Article 3 of Regulation 1/2003. §130(2) of the German Competition Act extends the Competition Act to all acts that have an effect in Germany.


|- class="categorydivision"
|- class="categorydivision"
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| Fines
| Fines
| 1
| 1
| Articles 13 and 19 allow for fines for serious violations of the Competition Act.
| §81(1)(1) of the German Competition Act says that the Cartel Authorities may impose administrative fines.


|-
|-
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| Divestitures
| Divestitures
| 1
| 1
| Article 7 of Council Regulation No. 1/2003 allows for structural remedies.
| Article 7 of CR 1/2003 allows for structural remedies.


|- class="categorydivision"
|- class="categorydivision"
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| 3rd Party Initiation
| 3rd Party Initiation
| 1
| 1
| Article 12 says that any interested party can bring a violation to the attention of the Authority.
| §32 of the German Competition Act says that 3rd parties may apply to the Cartel Authority to investigate RPM.


|-
|-
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| Remedies Available to 3rd Parties
| Remedies Available to 3rd Parties
| 1
| 1
| Article 33 allows 3rd parties to file a civil suit for damages.
| §33 of the German Competition Act says that 3rd parties may initiate private suits for damages incurred as a result of a violation of the Competition Act.
|-
|-
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| 3rd Party Rights in Proceedings
| 3rd Party Rights in Proceedings
| 1
| 1
| Article 27(3) of Council Regulation No. 1/2003 affords evidentiary rights to 3rd parties. 
| §54(3) of the German Competition Act allows 3rd parties whose interests will be substantially affected by the decision to be admitted as intervening parties to the proceedings before the Cartel Authority.
§54(3) of the German Competition Act allows 3rd parties whose interests will be substantially affected by the decision to be admitted as intervening parties to the proceedings before the Cartel Authority.  


|- class="categorydivision"
|- class="categorydivision"
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| Mandatory
| Mandatory
| 3
| 3
| Article 7(1) of CR 139/2004 requires notification.<ref>The new merger notification guidelines implemented by Council Regulation 139/2004 give undertakings the ability to request exemption from notification requirements.  However, because a formal request must be submitted and approved in order to gain exemption, the new notification guidelines are encoded here as requiring mandatory pre-merger notification.</ref>
| §37 of the German Competition Act requires notification of an impending merger to the FCO.
|-
|-
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| Pre-merger
| Pre-merger
| 2
| 2
| Article 7(1) of 139/2004 requires pre-clearance.
| §37 of the German Competition Act requires this notification to occur before the merger had been put into effect.
|-
|-
Line 78: Line 77:
| Dominance
| Dominance
| 1
| 1
| Article 2(1) of CR 139/2004 considers dominance.
| §36(1) of the German Competition Act says that a merger is permissible unless it strengthens or creates a dominant position.
|-
|-
|  
|  
| Restriction of Competition
| Restriction of Competition
| 1
| 0
| Article 2(1) of CR 139/2004 considers the interests of intermediate and ultimate consumers.
|  
|-
|-
|  
|  
| Public Interest (Pro D)
| Public Interest (Pro D)
| 1
| 0
| Article 2(1) of CR 139/2004 considers the development of technical and economic progress.
|  
|-
|-
|  
|  
| Public Interest (Pro Authority)
| Public Interest (Pro Authority)
| 1
| 0
| Article 2(1) of CR 139/2004 considers the interests of intermediate and ultimate consumers.
|  
|-
|-
Line 107: Line 106:
|  
|  
| Efficiency
| Efficiency
| 1
| 0
| Article 2(1) of CR 139/2004 allows an efficiency defense.
|  
|- class="categorydivision"
|- class="categorydivision"
Line 114: Line 113:
| Limits Access
| Limits Access
| 1
| 1
| Article 82(b) prohibits abuse of a dominant position.
| Article 82(b) of the EU Treaty prohibits abuse of a dominant position.
|-
|-
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| Abusive Acts
| Abusive Acts
| 1
| 1
| Article 82 prohibits abuse of a dominant position.
| Article 82 of the EU Treaty prohibits abuse of a dominant position.


|-
|-
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| Price Setting
| Price Setting
| 1
| 1
| Article 82(a) prohibits price setting.  
| Article 82(a) of the EU Treaty prohibits price setting.  
   
   


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| Discriminatory Pricing
| Discriminatory Pricing
| 1
| 1
| Articles 81(1)(d), 82(c) prohibit discrimatory conditions.
| Articles 81(1)(d) and 82(c) of the EU Treaty, prohibit discrimatory conditions.
|-
|-
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| Resale Price Maintenance
| Resale Price Maintenance
| 1
| 1
| Article 81 prohibits minimum resale price restrictions.<ref>EC Competition Law, at 97.</ref>  
| Article 81 of the EU Treaty prohibits minimum resale price restrictions.<ref>EC Competition Law, at 97.</ref>  
|-
|-
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| Obstacles to Entry
| Obstacles to Entry
| 1
| 1
| Article 82 prohibits anti-competitive pricing schemes.<ref>Id, at 283.</ref>  
| Article 82 of the EU Treaty prohibits anti-competitive pricing schemes.<ref>Id, at 283.</ref>  
|-
|-
Line 157: Line 156:
| Price Fixing
| Price Fixing
| 1
| 1
| Articles 81(1)(a) prohibits price fixing.
| Articles 81(1)(a) of the EU Treaty prohibits price fixing.
|-
|-
Line 163: Line 162:
| Tying
| Tying
| 1  
| 1  
| Articles 81(1)(e), 82(d) prohibit tying.  
| Articles 81(1)(e) and 82(d) of the EU Treaty prohibit tying.  
|-
|-
Line 169: Line 168:
| Market Division
| Market Division
| 1
| 1
| Article 81 prohibits customer allocation clauses.<ref>Id, at 97.</ref>
| Article 81 of the EU Treaty prohibits customer allocation clauses.<ref>Id, at 97.</ref>
|-
|-
Line 175: Line 174:
| Output Restraint
| Output Restraint
| 1  
| 1  
| Article 81(1)(b) prohibits limiting production.  
| Article 81(1)(b) of the EU Treaty prohibits limiting production.  
   
   
Line 182: Line 181:
| Market Sharing
| Market Sharing
| 1
| 1
| Article 81(1)(c) prohibits market sharing.  
| Article 81(1)(c) of the EU Treaty prohibits market sharing.  
|-
|-
Line 188: Line 187:
| Eliminating Competitors
| Eliminating Competitors
| 1
| 1
| Article 81(1) prohibits agreements that have the purpose or effect of eliminating competition.
| Article 81(1) of the EU Treaty prohibits agreements that have the purpose or effect of eliminating competition.
|-
|-
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| Collusive Tendering/Bid-Rigging
| Collusive Tendering/Bid-Rigging
| 1
| 1
| Article 81 prohibits bid-rigging.
| Article 81 of the EU Treaty prohibits bid-rigging.
|-
|-
Line 200: Line 199:
| Supply Refusal
| Supply Refusal
| 1
| 1
| Article 81(1)(b) prohibits supply refusal.
| Article 81(1)(b) of the EU Treaty prohibits supply refusal.
|-
|-
Line 206: Line 205:
| Efficiency Defense
| Efficiency Defense
| 1
| 1
| Article 81(3) allows an efficiency defense.
| Article 81(3) of the EU Treaty allows an efficiency defense.
|}
|}

Latest revision as of 23:46, 16 August 2008

Score = 25

Governed by: Articles 81 and 82 of the Treaty on European Union [hereafter EU Treaty], and European Commission Regulations 1/2003 [hereafter "CR 1/2003"] and 139/2004 [hereafter “CR 139/2004], as well as national legislation.[1]

Category Subcategory Score Comment
Scope Extraterritoriality 1 EU law governs whenever conduct has effects on trade between Member States pursuant to Article 3 of Regulation 1/2003. §130(2) of the German Competition Act extends the Competition Act to all acts that have an effect in Germany.
Remedies Fines 1 §81(1)(1) of the German Competition Act says that the Cartel Authorities may impose administrative fines.
Prison Sentences 0
Divestitures 1 Article 7 of CR 1/2003 allows for structural remedies.
Private Enforcement 3rd Party Initiation 1 §32 of the German Competition Act says that 3rd parties may apply to the Cartel Authority to investigate RPM.
Remedies Available to 3rd Parties 1 §33 of the German Competition Act says that 3rd parties may initiate private suits for damages incurred as a result of a violation of the Competition Act.
3rd Party Rights in Proceedings 1 §54(3) of the German Competition Act allows 3rd parties whose interests will be substantially affected by the decision to be admitted as intervening parties to the proceedings before the Cartel Authority.
Merger Notification Voluntary 0
Mandatory 3 §37 of the German Competition Act requires notification of an impending merger to the FCO.
Pre-merger 2 §37 of the German Competition Act requires this notification to occur before the merger had been put into effect.
Post-merger 0
Merger Assessment Dominance 1 §36(1) of the German Competition Act says that a merger is permissible unless it strengthens or creates a dominant position.
Restriction of Competition 0
Public Interest (Pro D) 0
Public Interest (Pro Authority) 0
Other 0
Efficiency 0
Dominance Limits Access 1 Article 82(b) of the EU Treaty prohibits abuse of a dominant position.
Abusive Acts 1 Article 82 of the EU Treaty prohibits abuse of a dominant position.
Price Setting 1 Article 82(a) of the EU Treaty prohibits price setting.


Discriminatory Pricing 1 Articles 81(1)(d) and 82(c) of the EU Treaty, prohibit discrimatory conditions.
Resale Price Maintenance 1 Article 81 of the EU Treaty prohibits minimum resale price restrictions.[2]
Obstacles to Entry 1 Article 82 of the EU Treaty prohibits anti-competitive pricing schemes.[3]
Efficiency Defense 0
Restrictive Trade Practices Price Fixing 1 Articles 81(1)(a) of the EU Treaty prohibits price fixing.
Tying 1 Articles 81(1)(e) and 82(d) of the EU Treaty prohibit tying.
Market Division 1 Article 81 of the EU Treaty prohibits customer allocation clauses.[4]
Output Restraint 1 Article 81(1)(b) of the EU Treaty prohibits limiting production.


Market Sharing 1 Article 81(1)(c) of the EU Treaty prohibits market sharing.
Eliminating Competitors 1 Article 81(1) of the EU Treaty prohibits agreements that have the purpose or effect of eliminating competition.
Collusive Tendering/Bid-Rigging 1 Article 81 of the EU Treaty prohibits bid-rigging.
Supply Refusal 1 Article 81(1)(b) of the EU Treaty prohibits supply refusal.
Efficiency Defense 1 Article 81(3) of the EU Treaty allows an efficiency defense.

References

  1. ↑ EU statutes and regulations available online from the European Competition Network, at http://ec.europa.eu/comm/competition/ecn/documents.html
  2. ↑ EC Competition Law, at 97.
  3. ↑ Id, at 283.
  4. ↑ Id, at 97.
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