Portugal/EU, 2003: Difference between revisions

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'''Score = 27'''
'''Score = 24'''


''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>
''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>
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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. Article 1(2) of the Portugese Competition Act prohibits anti-competitive conduct that occurs abroad having an effect in Portugal.


|- class="categorydivision"
|- class="categorydivision"
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| Fines
| Fines
| 1
| 1
| Articles 13 and 19 of CR 1/2003 allow for fines for serious violations of the EU Competition Act.
| Articles 43, 45, 46 of the Portugese Competition Act allow the Competition Authority to impose fines.


|-
|-
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| Divestitures
| Divestitures
| 1
| 1
| Article 7 of CR 1/2003 allows for structural remedies.
| Article 7 of CR 1/2003 allows for structural remedies.  Article 37 of the Portugese Competition Act allows for divestiture of improper mergers.


|- class="categorydivision"
|- class="categorydivision"
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| 3rd Party Initiation
| 3rd Party Initiation
| 1
| 1
| CR 1/2003, Article 12, says that any interested party can bring a violation to the attention of the Authority.
| Article 24 and 25 of the Portugese Competition Act require the national Competition Authority to initiate investigations upon 3rd party requests.  


|-
|-
|  
|  
| Remedies Available to 3rd Parties
| Remedies Available to 3rd Parties
| 1
| 0
| CR 1/2003, Article 33, allows 3rd parties to file a civil suit for damages.
|  
|-
|-
|  
|  
| 3rd Party Rights in Proceedings
| 3rd Party Rights in Proceedings
| 1
| 0
| Article 27(3) of CR 1/2003 affords evidentiary rights to 3rd parties.
|  


|- class="categorydivision"
|- class="categorydivision"
| Merger Notification<ref>The National Competition Authority will assess mergers under the National Competition Act. If the concentration affects trade between the Member States, the European Commission will assess the merger under Regulation 139/2004. See the coding for the European Commission for those provisions.</ref>
| Merger Notification
| Voluntary
| Voluntary
| 0
| 0
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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>
| Article 9 of the Portugese Competition Act requires merger notification.  
|-
|-
|  
|  
| Pre-merger
| Pre-merger
| 2
| 2
| Article 7(1) of 139/2004 requires pre-clearance.
| Article 9 of the Portugese Competition Act requires pre-merger notification.
|-
|-
|  
|  
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| Dominance
| Dominance
| 1
| 1
| Article 2(1) of CR 139/2004 considers dominance.
| Article 12 of the Portugese Competition Act prohibits mergers that strengthen dominant positions.
|-
|-
|  
|  
| Restriction of Competition
| Restriction of Competition
| 1
| 1
| Article 2(1) of CR 139/2004 considers the interests of intermediate and ultimate consumers.
| Article 12 of the Portugese Competition Act prohibits mergers that restrict competition.
|-
|-
|  
|  
| Public Interest (Pro D)
| Public Interest (Pro D)
| 1
| 1
| Article 2(1) of CR 139/2004 considers the development of technical and economic progress.
| Article 12(L) of the Portugese Competition Act allows otherwise impermissible mergers that contribute to international competitiveness.
|-
|-
|  
|  
| 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.
|  
|-
|-
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| Efficiency
| Efficiency
| 1
| 1
| Article 2(1) of CR 139/2004 allows an efficiency defense.
| Article 12 of the Portugese Competition Act permits pro-competitive justifications for otherwise impermissible mergers.  
|- class="categorydivision"
|- class="categorydivision"

Latest revision as of 23:45, 16 August 2008

Score = 24

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. Article 1(2) of the Portugese Competition Act prohibits anti-competitive conduct that occurs abroad having an effect in Portugal.
Remedies Fines 1 Articles 43, 45, 46 of the Portugese Competition Act allow the Competition Authority to impose fines.
Prison Sentences 0
Divestitures 1 Article 7 of CR 1/2003 allows for structural remedies. Article 37 of the Portugese Competition Act allows for divestiture of improper mergers.
Private Enforcement 3rd Party Initiation 1 Article 24 and 25 of the Portugese Competition Act require the national Competition Authority to initiate investigations upon 3rd party requests.
Remedies Available to 3rd Parties 0
3rd Party Rights in Proceedings 0
Merger Notification Voluntary 0
Mandatory 3 Article 9 of the Portugese Competition Act requires merger notification.
Pre-merger 2 Article 9 of the Portugese Competition Act requires pre-merger notification.
Post-merger 0
Merger Assessment Dominance 1 Article 12 of the Portugese Competition Act prohibits mergers that strengthen dominant positions.
Restriction of Competition 1 Article 12 of the Portugese Competition Act prohibits mergers that restrict competition.
Public Interest (Pro D) 1 Article 12(L) of the Portugese Competition Act allows otherwise impermissible mergers that contribute to international competitiveness.
Public Interest (Pro Authority) 0
Other 0
Efficiency 1 Article 12 of the Portugese Competition Act permits pro-competitive justifications for otherwise impermissible mergers.
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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