EU Law, 2010: Difference between revisions

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New page: '''Score = 27''' '''Governed by:''' *''EU law:'' :* Articles 101<ref>available from the EC at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12008E101:EN:NOT</ref> and 102<r...
 
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'''Score = 27'''
'''Score = 28'''


'''Governed by:'''
'''Governed by:'''
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| Extraterritoriality
| Extraterritoriality
| 1
| 1
| EU law governs whenever conduct has effects on trade between Member States pursuant to Article 3 of Regulation 1/2003.
| EU law (the Rome Treaty) governs whenever conduct has effects on trade between Member States pursuant to Article 3 of Regulation 1/2003.


|- class="categorydivision"
|- class="categorydivision"
|Remedies
| Remedies
|Fines
| Fines
| 1
| 1
|Art. L.420-6 of the Code de Commerce allows for fines for violations of competitive practices. Article L.430-8 allows for fines for improper merger. 
| Council Regulation 1/2003 (Chapter VI, Articles 23 and 24)


|-
|-
|
|  
| Prison Sentences
| Prison Sentences
| 0
| 0
| The Code de Commerce does not provide for prison sentences for violations of EU law; however, violations of the ''national'' law can result in prison sentences.
|  


|-
|-
|
|  
| Divestitures
| Divestitures
| 1
| 1
| Are. L.430-8 of the Code de Commerce authorizes divestment in the case of unauthorized mergers.  
| Article 8(4) of Regulation 139/2004 (EC Merger Regulation).


|- class="categorydivision"
|- class="categorydivision"
|Private Enforcement
| Private Enforcement
|3rd Party Initiation
| 3rd Party Initiation
|1
| 1
|L.470-7 of the Code de Commerce lets trade organizations file civil suits for practices affecting their industry.
| Council Regulation 1/2003 (Chapter III, Article 7(2))


|-
|-
|
|  
| Remedies Available to 3rd Parties
| Remedies Available to 3rd Parties
| 1
| 1
| Private enforcement of Articles 81 and 82 of the EC treaty is mandated and encouraged by the European Commission.<ref>http://ec.europa.eu/comm/competition/antitrust/actionsdamages/files_white_paper/whitepaper_en.pdf</ref>  
| Private citizens have a right to bring a civil action in a national court with adequate competence.<ref>Green Paper:  http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2005:0672:FIN:EN:PDF</ref>
|-
|-
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| 3rd Party Rights in Proceedings
| 3rd Party Rights in Proceedings
| 1
| 1
| Art. L.463-1 of the Code de Commerce states that "interested parties" may participate in proceedings.  
| Council Regulation 1/2003 (Chapter VIII, Article 27(3)) - 3rd parties may be heard by the Comission in proceedings; interested 3rd parties have the right to be heard in merger assessment proceedings (preamble to EC Merger Control Regulation 139/2004, para. 38)


|- 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
| Merger Notification
 
Regulation 139/2004. See the coding for the European Commission for those provisions.</ref>
| Voluntary
| Voluntary
| 0
| 0
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| Mandatory
| Mandatory
| 3
| 3
| Art. L.430-2 of the Code de Commerce requires that large companies get government approval before or when they merge.  
| Article 4(1), Articles 6 and 7 of EC Merger Regulation 139/2004.
|-
|-
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| Pre-merger
| Pre-merger
| 2
| 2
| Art. L.430-2 of the Code de Commerce requires that large companies get government approval before or when they merge. However, article L. 430-4 allows companies to merge while awaiting approval under urgent circumstances.  
| Article 4(1), Articles 6 and 7 of EC Merger Regulation 139/2004.
|-
|-
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| Dominance
| Dominance
| 1
| 1
| Art. L.430-6 of the Code de Commerce requires consideration of dominance as part of the decision whether to grant a merger.
| EC Merger Control Regulation 139/2004, Article 2(1)(b), 2(2) and 2(3)
|-
|-
|  
|  
| Restriction of Competition
| Restriction of Competition
| 1
| 1
| Art. L.430-6 of the Code de Commerce requires consideration of the effects on competition as part of the decision whether to grant a merger.
| EC Merger Control Regulation 139/2004, Article 2(1), 2(2) and 2(3)
|-
|-
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| Public Interest (Pro D)
| Public Interest (Pro D)
| 1
| 1
| Art. L.430-6 of the Code de Commerce requires consideration of public public interest, especially with regard to international competitors, when deciding whether to permit a merger.
| EC Merger Control Regulation 139/2004, Article 2(1)(b)
|-
|-
|  
|  
| Public Interest (Pro Authority)
| Public Interest (Pro Authority)
| 0
| 1
|  
| EC Merger Control Regulation 139/2004, Article 2(1)(b)
|-
|-
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|  
|  
| Efficiency
| Efficiency
| 0
| 1
|  
| Preamble to EC Merger Control Regulation 139/2004  on page 4 (para. 29).
|- class="categorydivision"
|- class="categorydivision"
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| Obstacles to Entry
| Obstacles to Entry
| 1
| 1
| Article 102 of the TEFF prohibits using predatory pricing to  drive competitors from the market<ref>See the EC antitrust overview, at http://ec.europa.eu/comm/competition/antitrust/overview_en.html</ref>
| Article 102 of the TEFF prohibits using predatory pricing to  drive competitors from the market.
|-
|-

Latest revision as of 21:23, 13 November 2010

Score = 28

Governed by:

  • EU law:
  • Articles 101[1] and 102[2] of the TFEU.
  • Council Regulation (EC) No 1/2003 of 16 December 2002 [3]
Note: With effect from 1 December 2009, Articles 81 and 82 of the EC Treaty have become Articles 101 and 102 respectively of the TFEU.
Category Subcategory Score Comment
Scope Extraterritoriality 1 EU law (the Rome Treaty) governs whenever conduct has effects on trade between Member States pursuant to Article 3 of Regulation 1/2003.
Remedies Fines 1 Council Regulation 1/2003 (Chapter VI, Articles 23 and 24)
Prison Sentences 0
Divestitures 1 Article 8(4) of Regulation 139/2004 (EC Merger Regulation).
Private Enforcement 3rd Party Initiation 1 Council Regulation 1/2003 (Chapter III, Article 7(2))
Remedies Available to 3rd Parties 1 Private citizens have a right to bring a civil action in a national court with adequate competence.[4]
3rd Party Rights in Proceedings 1 Council Regulation 1/2003 (Chapter VIII, Article 27(3)) - 3rd parties may be heard by the Comission in proceedings; interested 3rd parties have the right to be heard in merger assessment proceedings (preamble to EC Merger Control Regulation 139/2004, para. 38)
Merger Notification Voluntary 0
Mandatory 3 Article 4(1), Articles 6 and 7 of EC Merger Regulation 139/2004.
Pre-merger 2 Article 4(1), Articles 6 and 7 of EC Merger Regulation 139/2004.
Post-merger 0
Merger Assessment Dominance 1 EC Merger Control Regulation 139/2004, Article 2(1)(b), 2(2) and 2(3)
Restriction of Competition 1 EC Merger Control Regulation 139/2004, Article 2(1), 2(2) and 2(3)
Public Interest (Pro D) 1 EC Merger Control Regulation 139/2004, Article 2(1)(b)
Public Interest (Pro Authority) 1 EC Merger Control Regulation 139/2004, Article 2(1)(b)
Other 0
Efficiency 1 Preamble to EC Merger Control Regulation 139/2004 on page 4 (para. 29).
Dominance Limits Access 1 Article 102(b) of the TEFF prohibits limiting production.
Abusive Acts 1 Article 102 of the TEFF prohibits abuse of a dominant position.
Price Setting 1 Article 102(a) of the TEFF prohibits price setting.
Discriminatory Pricing 1 Article 102(c) of the TEFF prohibits discriminatory conditions.
Resale Price Maintenance 1 Article 102(a) of the TEFF prohibits resale price maintenance.
Obstacles to Entry 1 Article 102 of the TEFF prohibits using predatory pricing to drive competitors from the market.
Efficiency Defense 0
Restrictive Trade Practices Price Fixing 1 Article 101(1)(a) of the TEFF prohibits price fixing.
Tying 1 Article 101(1)(e) of the TEFF prohibits tying.
Market Division 1 Article 101 of the TEFF prohibits market division[5]


Output Restraint 1 Article 101(1)(b)of the TEFF prohibits limiting production.
Market Sharing 1 Article 101(1)(c)of the TEFF prohibits market sharing.
Eliminating Competitors 1 Article 101(1) of the TEFF prohibits agreements that have the purpose or effect of eliminating competition.
Collusive Tendering/Bid-Rigging 1 Article 101 of the TEFF prohibits bid-rigging.[6]
Supply Refusal 1 Article 101(1)(b) bans refusal to supply.
Efficiency Defense 1 Article 101(3)of the TEFF allows an efficiency defense.

References

  1. ↑ available from the EC at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12008E101:EN:NOT
  2. ↑ available from the EC at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do? uri=CELEX:12008E102:EN:NOT
  3. ↑ Available at http://ec.europa.eu/competition/antitrust/legislation/regulations.html
  4. ↑ Green Paper: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2005:0672:FIN:EN:PDF
  5. ↑ Although the wording of the treaty seems to apply to market sharing, the EC also considers market division illegal. See the EU press release at http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/07/29&format=HTML&aged=0&language=EN&guiLanguage=en
  6. ↑ Although not explicitly stated in the statute, bid-rigging is considered anti-competitive behavior. See the case involving gas insulated switchgear, at http://europa.eu/rapid/pressReleasesAction.do?reference=IP/07/80&format=HTML&aged=0&language=EN&guiLanguage=en
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