Germany/EU, 2005
Score = 27
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 | Scope extends to foreign corporations.[2] |
| Remedies | Fines | 1 | Articles 13 and 19 of CR 1/2003 allow for fines for serious violations of the EU Competition Act. |
| Prison Sentences | 0 | ||
| Divestitures | 1 | Article 7 of CR 1/2003 allows for structural remedies. | |
| Private Enforcement | 3rd Party Initiation | 1 | CR 1/2003, Article 12, says that any interested party can bring a violation to the attention of the Authority. |
| Remedies Available to 3rd Parties | 1 | CR 1/2003, Article 33, allows 3rd parties to file a civil suit for damages. | |
| 3rd Party Rights in Proceedings | 1 | Article 27(3) of CR 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. | |
| Merger Notification | Voluntary | 0 | |
| Mandatory | 3 | Article 7(1) of CR 139/2004 requires notification.[3] | |
| Pre-merger | 2 | Article 7(1) of 139/2004 requires pre-clearance. | |
| Post-merger | 0 | ||
| Merger Assessment | Dominance | 1 | Article 2(1) of CR 139/2004 considers dominance. |
| Restriction of Competition | 1 | Article 2(1) of CR 139/2004 considers the interests of intermediate and ultimate consumers. | |
| Public Interest (Pro D) | 1 | Article 2(1) of CR 139/2004 considers the development of technical and economic progress. | |
| Public Interest (Pro Authority) | 1 | Article 2(1) of CR 139/2004 considers the interests of intermediate and ultimate consumers. | |
| Other | 0 | ||
| Efficiency | 1 | Article 2(1) of CR 139/2004 allows an efficiency defense. | |
| 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.[4] | |
| Obstacles to Entry | 1 | Article 82 of the EU Treaty prohibits anti-competitive pricing schemes.[5] | |
| 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.[6] | |
| 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
- ↑ EU statutes and regulations available online from the European Competition Network, at http://ec.europa.eu/comm/competition/ecn/documents.html
- ↑ Goyder, D. G., EC Competition Law, 4th ed. 2003, at 99.
- ↑ 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.
- ↑ EC Competition Law, at 97.
- ↑ Id, at 283.
- ↑ Id, at 97.