Eu Competition Law Seminar Assignment

Competition Law
Seminar 2
September 14, 2022. Basic concepts
Reading materials:
- Treaty provisions;
- Joined Cases C–2/01 P to C–3/01 P Bayer;

 Concerning the boundaries of unlawful collusion
 Bayer AG manufactured Adalat a medicine
 The medicine was sold by entirely owned subsidiaries (a company controlled by a
holding company) in different Member States
 National health authorities fix prices for medicines
 French and Spanish prices were fixed at a rate 40% lower than UK prices
 Therefore, wholesalers were buying Adalat in Spain and France importing it to the
UK, meaning that Bayer UK was at s loss
 Bayer changed its delivery policy, so that it did not fulfil all large order placed by
Spain and France
 Commission found that bayer France and bayer spain had made an agreement with
wholesalers on the export of Adalat to other member states
 Bayers delivery policy amounted to an export ban, to which the wholesalers had
consented
- C- 228/18 Budapest Bank;
- Whish & Bailey, Chapter 14, pp. 588-601.
Questions:
1. Please explain the difference between an agreement and a concerted practice within
the meaning of Article 101 TFEU?
In the Dyestuff case, the AG Mayras stated that concerted practices, must have effects
on competition in the market, agreements can only have objects, which does not need
to be proven to have any effects on the market.
Definition concerted practice (Suiker Unie Case): while not reaching the stage of
the existence of an agreement, any intentional practices which form coordination
providing practical cooperation between them against the risks of competition, and
which lead to a competition condition that do not reflect the normal conditions of the
market considering the structure of the market, structure of the product, and the size
and importance of the undertakings.
Stage before  not the proper agreement yet, however, no legal consequence. One
difference, is the intensity, agreement is more intense
You can find it in the reader under the commission guidelines  horizontal
cooperation guidelines para 16 and following.
2. Can a measure adopted or imposed unilaterally by a manufacturer in the context of the

continuous relations which it maintains with its retailers (any of distributors) constitute
an agreement within the meaning of Article 101(1) TFEU? Please motivate your
answer.
Unilaterally; done or undertaken by one person or party.
Yes, when retailers accept the measure and follow it after then there is conduct.
No in Bayer they concluded that a measure imposed unilaterally by a manufacturer, which has
the object or effect of restricting competition, falls in the context of continuous business
relations between the manufacturer and its wholesalers does not constitute to an agreement.
(para. 142 Bayer)
Yes, however, not in bayer, it is not infinitaly elastic, court is criticizing previous case law.
E.g. ford, AEG. It could be abuse f dominance but there would be a dominant company,
however, this Is usually not the case. The lesson from the case there are agreements in vertical
relationsiops only those are agreements if isn’t a policy unilaterally imposed, here the court
said it was and the addition is that it is not easily to unilaterllay impose. Look at bayer case,
which explanes the most important reasons of the dividing line. Unilaterally imposed policy
within long term relationships does not amount to an agreement, but the question is what is an
unilaterally imposed policy?
3. There are only two producers of processors for personal computers in the world: Antel
and IMD. Antel and IMD sell their processors for slightly more than how much it
costs to produce them, i.e. for a competitive price. A global pandemic hits. As a
consequence, the demand for PC processors increases because people work more from
home. Antel reacts to this development by raising the prices of all its processor models
by 25%. Two weeks later, IMD realizes that it could also make some extra profit by
following Antel’s strategy and consequently raises its prices by 25%.
a. Do Antel and IMD violate Article 101 TFEU by raising their prices? Please
explain why or why not.
No as the expression of a unilateral policy of one of the contracting parties, which can be put
into effect without the assistance of others, even if such unilateral policy is aimed at
preventing parallel imports.
What if there was not pandemic?  still no, but, it is bad for consumers, but it is not illegal,
however could be an indicator for concerted practices. It is tacit collusion, in mergers
coordinated effects. Article 101 does not touch this.
b. What would your answer be if it turns out that the two companies
regularly exchange information about their current as well as planned production
capacity?
They would be violating art. 101 under (a) as they have as their object and/or effect to distort
competition within the internal market
4. Please explain what the main purpose is of defining the relevant market in competition
law assessment.
The commission defines it as a tool which helps to identify and define the boundaries of
competition between firms The relevant market contains all those substitute products and
regions which provide a significant competitive constraint on the products and regions of
interest. An extensive or restrictive approach concerning the relevant market would have
direct effects on the finding of a dominant position
Relevant market; is the sum of products of companies, it defines who the competitors are
5. Company A produces orange-flavored carbonated soft drinks and sells them to

restaurants in Portugal. Company A would like to know whether its agreements with
Portuguese restaurants are covered by the so-called Vertical Block Exemption
Regulation (VBER) (discussed in more depth in week 5). In order to know whether the
VBER applies, the company needs to calculate its market share, which in turn requires
the relevant market to be defined.
- Discuss whether (under what conditions) the following products would belong to
the same relevant market: a) orange-flavored non-carbonated soft drinks sold
to restaurants in Portugal, b) orange-flavored carbonated soft drinks sold to
supermarkets in Portugal, c) orange-flavored carbonated soft drinks sold in Spain.
First step: Is it substitutable?  would the customer exchange the product if the product was
gone, eyes of the buyer  ssnip test: small but significant/substantial  test we use to define
the relevant market  do they constitute their own market? If they increase their price, what
would the consumer do? They switch to another of drinks they have a shared market, if they
stay they are their own market
Answer is none of these, according to CJEU, decision commission M9122 – tccc/costa
6. What is a restriction of competition ‘by object’ within the meaning of Article 101(1)
TFEU?
Restrictions of competition by object are those that by their very nature have the potential of
restricting competition.
Not mutually exclusive, effect and object (bank case) there are certain categories in
undertakings that are statiscally harmfull, all agreements are illegal, Budapest case explains
this, counter attack what Budapest bank says it still requires a pretty big ananlysis to know
whether a agreement rest

Eu Competition Law Seminar Assignment

Uploaded by

Copyright:

Available Formats

Eu Competition Law Seminar Assignment

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Eu Competition Law Seminar Assignment

Uploaded by

Copyright:

Available Formats

Competition Law

September 14, 2022. Basic concepts

- Joined Cases C–2/01 P to C–3/01 P Bayer;

- C- 228/18 Budapest Bank;

- Whish & Bailey, Chapter 14, pp. 588-601.

2. Can a measure adopted or imposed unilaterally by a manufacturer in the context of the

Unilaterally; done or undertaken by one person or party.

5. Company A produces orange-flavored carbonated soft drinks and sells them to

Answer is none of these, according to CJEU, decision commission M9122 – tccc/costa

You might also like

Pfad - The Proxy pFad of © 2024 Garber Painting. All rights reserved.