Competition Law Provisions Research Articles

The Competition Law Provisions of the 60-Year-Old Treaty of Rome

The Competition Law Provisions of the 60-Year-Old Treaty of Rome

A refusal to grant access to a grid within the provision of crude oil transfer services as an example of a prohibited abuse of a dominant position in the EU and Polish competition law

Aim: The paper discusses cases in which a refusal by an energy enterprise to connect other enterprises to the network is treated as a prohibited abuse of the enterprise's dominant position and, equally, will represent behavior prohibited by art. 12 of the Treaty on the Functioning of the European Union and by art. 9 par. 2 item 2 of the Competition and Consumer Protection Law as well as legal consequences of such refusal. It is important to pinpoint such cases since the EU sectoral regulation does not provide for obligating any undertakings which manage and operate oil pipelines to enter into contracts with other undertakings such as contracts on connecting into their network or contracts on providing crude oil transfer services. Conditions for accessing oil pipelines and selling their transfer capacities are determined by the owners of the networks: private oil companies in the countries across which the pipelines are routed. These conditions are not governed by the EU law. Furthermore, the very obligation of connecting other entities to own network by energy undertakings operating in the oil transfer sector in Poland will only arise from generally applicable provisions of the Polish competition law. Design / Research methods: The purpose of the paper has been reached by conducting a doctrinal analysis of relevant provisions of Polish and EU law and an analysis of guidelines issued by the EU governing bodies. Furthermore, the research included the functional analysis method which analyses how law works in practice. Conclusions / findings: The deliberations show that a refusal to access the network will be a manifestation of a prohibited abuse of a dominant position and will be a prohibited action always when the dominant's action is harmful in terms of the allocation effectiveness. It will be particularly harmful when delivery of goods or services objectively required for effective competition on a lower level market, a discriminatory refusal which leads to elimination of an effective competition on the consequent market, a refusal leading to unfair treatment of consumers and an unjustified refusal. Originality / value of the article: The paper discusses the prerequisites which trigger the obligation to connect entities to own network by energy undertakings operating in the oil transfer sector. The obligation has a material impact on the operations of the oil transmitting undertakings, in particular on those who dominate the market. The regulatory bodies in the competition sector may classify a refusal of access to own network by other enterprises as a prohibited abuse of the dominant position, exposing such undertakings to financial consequences.Implications of the research: The research results presented in the paper may be used in decisions issued by the President of the OCCP and in judgement of Polish civil courts and EU courts. This may cause a significant change in the approach to classifying prohibited practices to prohibited behavior which represent abuse of the dominant position. The deliberations may also prompt the Polish and EU legislator to continue works on the legislation.

Pravo mjerodavno za povrede prava tržišnog natjecanja

Brojna su i složena pitanja koja se postavljaju u okviru teme prava mjerodavnog za povrede pravila tržišnog natjecanja. To nije promijenilo niti usklađivanje nacionalnih pravila nedavno usvojenom Direktivom o naknadi štete za kršenje odredba prava tržišnog natjecanja. U ovom radu obrađuju se neka od tih pitanja, poglavito tumačenje pojmova iz odredbe članka 6. stavka 3. Uredbe Rim II o pravu mjerodavnom za izvanugovorne obveze te s time povezani aspekti interakcije prava tržišnog natjecanja EU-a i nacionalnog prava tržišnog natjecanja. Počevši od polja primjene ratione materiae navedene posebne kolizijske odredbe, preko definiranja “tržišta” kao bitne komponente poveznice lex mercati, pa do funkcioniranja općih odredbi kojima se štite javni interesi suprotstavljaju se oprečna stajališta u doktrini i ukazuje se na moguća načela koja bi trebala biti uzeta u obzir u analizi. Dodatni naglasak je na problematičnim pitanjima proizašlima iz pogrešnog prijevoda relevantnih propisa EU-a na hrvatski jezik.

“Anti-competition agreements” and legal options to pursue claims for damages before common courts

Aim: In the article the situation is discussed where the refusal by an energy supplier to connect other companies to join the network, will be treated (in Poland and the EU) as a prohibited abuse of a dominant position by this company. The identification of such practices is important because EU sectoral legislation does not contain specific provisions requiring companies managing and operating oil pipelines to conclude agreements with other companies to join their networks or to deliver oil.Design / Research methods: The aim of the article was achieved through doctrinal analysis of the relevant Polish and EU law and by analyzing guidelines issued by EU bodies. In the study, also functional analysis is applied, allowing to examine the functioning of the law.Conclusions / findings: Access to oil pipelines and the sale of their transmission capacity are determined by the network owners themselves. These owners are private oil companies, not being regulated by European Union law. The obligation to connect other entities to its own network by power transmission companies in Poland results only from the general provisions of Polish competition law. It is shown that refusal to access the network is a manifestation of prohibited abuse of dominant position, which is prohibited whenever the dominant activity is detrimental to allocation efficiency. In particular this concerns the case when the supply of goods or services objectively necessary for effective competition on the market in general is denied, and leads to the elimination of effective competition in the market and/or harm to consumers.Originality / value of the article: The article discusses the reasons for the legal obligation for energy companies involved in the transmission of crude oil to connect other companies into their own network. This obligation significantly influences the business conducted by the transmission companies.Implications of the research: The presented research results are useful for assessing decisions issued by the President of UOKiK (the Polish Office of Competition and Consumer Protection) and in the judgments of Polish common courts and EU courts.

“By object” restrictions pursuant to Article 101(1) TFEU: a clear matter or a mess, and a critical analysis of the court's judgement in Expedia?

ABSTRACTA lot has been written on “effect analysis” with respect to the application of the competition law provisions, namely Articles 101(1) and 102 of the Treaty on the Functioning of the European Union (TFEU). This piece focusses on the delineation of object and effect infringements according to Article 101(1) TFEU in particular considering the respective extent of economic analysis required under each of the concepts, as it is well established that object restrictions cannot be identified in the abstract, that is, a certain analysis of the actual circumstances is required. The piece aims to analyse the existing framework for the establishment of object restrictions identifying where to draw the line between the concepts of “object” and “effect” restrictions. Put differently, how much “effect” or economic analysis withstands the concept of “by object” restrictions without running the risk to overlap or “mingle” with the concept of restrictive effects? Furthermore, aiming to draw an overall picture of the existing framework of object restrictions, the piece also sheds light on the Courts judgement in Expedia, excluding by object restrictions from the De Minimis presumption.

'Will Its Provisions Serve Its Goals? Directive 2014/104/EU on Certain Rules Governing Actions for Damages for Competition Law Infringements'

Directive 2014/104/EU of the European Parliament and the Council “on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union” was issued at last, on November 26, 2014. In its introductory remarks, the Directive acknowledges that there are a number of differences in the rules governing actions for damages on grounds of breach of EU or national competition law before courts in the various member-states, and that the respective legal requirements are often hard to fulfill. The Directive therefore declares as its objective, firstly, to ensure that anyone who has suffered harm caused by an infringement of competition law can effectively exercise the right to full compensation, secondly, to promote a minimum level of harmonization of national rules in order to achieve equivalent protection of injured parties in the EU, and thirdly, to coordinate the enforcement of antitrust legislation by competition authorities and national courts (the public and the private enforcement). The present paper argues that the Directive contains some useful procedural rules but is mostly characterized by general and vague goal-setting provisions which are very often not applicable as such, and cannot be incorporated in the national compensation systems without further specification. Instead, in many critical instances the Directive simply instructs the member states to ensure that their judges will achieve a particular, often formless, justice-serving purpose, without providing an actual rule, whereby leaving great room for action (or inaction) by the national legislators and judges. Effective transposition of the Directive into national law therefore presupposes that each member state will convert the Directive goals to actual applicable provisions on its own accord. Alternatively, judges will be handed the general pleadings for justice included in the Directive and will be left alone with the heavy task of transforming them into actual rulings. In both cases, it does not seem likely that the Directive will achieve a large degree of harmonization of the national antitrust damages rules. In view of the increased complexity of some of the compensation rules it is also questionable whether we will see an overall improvement in the effectiveness of private enforcement in most member states, where it is needed. The only objective, which the Directive expressly intends to serve and might actually succeed in doing, is the coordination of private (private) and public enforcement (public enforcement) rules of competition, albeit here also with some degree of uncertainty.

Access to Leniency Documents and Actions for Damages – an Uneasy Match

Directive 2014/104 of the European Parliament and the Council of 26 November 2014 (hereinafter Damages Directive) constitutes a first attempt to harmonize the actions for damages for infringement of competition law provisions both at national and European level.

Competition Law Provisions Applied in Sports. Articles 101 and 102 TFEU (Part I)

Competition Law Provisions Applied in Sports. Articles 101 and 102 TFEU (Part I)

Fine to follow-on? Private anti-trust actions in European law

If an undertaking infringes European or national competition law, the infringers must reckon with a large range of possible sanctions, of both a public law and a private law nature. Regarding the latter, we take note in this paper of anti-trust actions for damages by private claimants, which have become ever more significant in the anti-trust debate. Against a background of divergent developments in the European Member States, the European legislator has adopted Directive 2014/104/EU (Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union Text with EEA relevance, OJ 2014 L 349, 1 ff (DADA)), with the aim of facilitating the full compensation of damage suffered by those affected by violations of European or national competition law, and to coordinate public and private enforcement measures. The Member States must implement this Directive into their national systems. This paper gives an overview of the Directive, analyses its most important provisions, and then discusses the international issues raised in cases concerning cross-border anti-competitive activities.

Provisions of the Damages Directive on Limitation Periods and their Implementation in CEE Countries

The article analyses the provisions on limitation of antitrust damages actions set out in Directive 2014/104/EU on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union. It presents (draft) implementing legislation of CEE countries from the perspective of their general rules on limitation, and the problems the Member States have faced in the process of transposing the Directive into their national legal systems. Within that, focus is placed upon the analysis of the types of limitation periods, their length and their suspension or interruption. In addition, the authors present the effects of the new limitation regime on the balance between the interests of the claimants and of the defendants, as well as on the relation between public and private antitrust enforcement.

Private Enforcement of EU Competition Law: A Comparison with, and Lessons from, the US

This paper examines the core features of the EU reform package designed to encourage greater volumes of private enforcement of the EU competition rules, particularly the Directive on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union. Its principal objective is not, however, to scrutinize these provisions in detail. Rather, its purpose is to reflect on the questions of why, especially when compared with the position in the US, it has proved so difficult for a culture of antitrust litigation to develop in the EU, why the Commission believed that EU measures were necessary to kindle it and to consider, against that backdrop, whether the EU package is likely to achieve its stated goals. Section 2 commences by exploring how private enforcement has developed in the US, examining not only the factors that have facilitated and encouraged it, but the extremes widely-believed to have bedeviled and undermined it, and the steps which have consequently been taken to limit and curtail private actions there. Section 3 then examines the EU system and seeks to unpick the different factors that have operated over time as barriers to private litigation in the EU Member States and to identify those that still exist. Having set out the factors that have encouraged and hindered litigation in the US and the EU respectively and examined some of the pros and cons of each system, it is possible to reflect more fully on the questions of whether private litigation should be further encouraged in the EU, what measures might be desirable or required to overcome the obstacles which exist to it, what measures should be avoided, whether the current package is likely to succeed, what pitfalls might be anticipated and/or what further developments and clarifications are likely to be required in the future. Section 4 concludes that the package of reforms is not likely to lead to over-enforcement or to the encouragement of unmeritorious antitrust actions in the EU. What may be more of an issue, however, is whether it has done enough to boost and facilitate private damages actions and to create the level playing field across the EU sought by the Commission. Not only does the Directive not institute a completely harmonised framework, leaving a number of potential obstacles to national actions and areas of legal ambiguity outstanding, but a number of the Directive’s provisions are liable to introduce considerable complexities into national proceedings. Further, scope for some significant divergences between national rules remain; such differences are likely to continue to affect where litigants choose to commence their actions and to result in forum-shopping.

Private Damages Actions Under EU Competition Policy: An Exploration of the Ongoing Sea Change in Respect of Such Actions Concerning Articles 101 and 102 TFEU Infringements

The EU has an established history of public enforcement concerning antitrust infringements under what are now Articles 101 and 102 of the Treaty of the Functioning of the European Union (TFEU). Yet, until recently, this has not been true in respect of private compensatory damages actions in relation to the said articles. Hence, these actions are now seen as reinforcing the existing deterrent provided by pubic enforcement fines. This paper focuses upon the ongoing sea change that aims to enable and encourage compensatory damages claims in relation to harm caused by breaches of 101 and 102 TFEU. It reveals that both the Court of Justice of the European Union (CJEU) and the European Commission have played pioneering roles in advancing this sea change. It further asserts that, although the rulings of the CJEU have created a hybrid architecture that makes possible private actions in relation to the said breaches under Member state procedural laws before national courts, the architecture itself is problematic as it fails to guarantee that Member states’ procedural rules have a high degree of uniformity, thereby failing to guarantee a regulatory level playing field across the Union concerning the said damages actions. Moreover, not only is the architecture problematic, but it needed further development in respect of rules and requirements in several key areas, such as the right of evidential disclosure, the limitation period issue, collective redress and the quantification of harm, so as to facilitate and encourage claims. The Commission was aware of these concerns, and this paper explores its response. The issues could have been addressed by the establishment of a set of EU procedural rules which national courts would apply in the said actions but the Commission decided upon a different way forward. Working with the said hybrid architecture, and through the vehicle of the 2014 Directive on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union, the Commission has amended and created rules and requirements which will form part of Member states’ domestic procedural law—and therefore will be applied by national courts—in order to establish a more level regulatory playing field across the Union which should facilitate and encourage private compensatory damages actions for harm caused by EU antitrust breaches. Of course, a more level playing field means that differences will still remain. Moreover, it will be some time before the success of the Directive can be gauged, and further measures may be required in the future.

Will Its Provisions Serve Its Goals? Directive 2014/104/EU on Certain Rules Governing Actions for Damages for Competition Law Infringements

Directive 2014/104/EU of the European Parliament and the Council “on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union” was issued at last, on November 26, 2014. In its introductory remarks, the Directive acknowledges that there are a number of differences in the rules governing actions for damages on grounds of breach of EU or national competition law before courts in the various member-states, and that the respective legal requirements are often hard to fulfill. The Directive therefore declares as its objective, firstly, to ensure that anyone who has suffered harm caused by an infringement of competition law can effectively exercise the right to full compensation, secondly, to promote a minimum level of harmonization of national rules in order to achieve equivalent protection of injured parties in the EU, and thirdly, to coordinate the enforcement of antitrust legislation by competition authorities and national courts (the public and the private enforcement). The present paper argues that the Directive contains some useful procedural rules but is mostly characterized by general and vague goal-setting provisions which are very often not applicable as such, and cannot be incorporated in the national compensation systems without further specification. Instead, in many critical instances the Directive simply instructs the member states to ensure that their judges will achieve a particular, often formless, justice-serving purpose, without providing an actual rule, whereby leaving great room for action (or inaction) by the national legislators and judges. Effective transposition of the Directive into national law therefore presupposes that each member state will convert the Directive goals to actual applicable provisions on its own accord. Alternatively, judges will be handed the general pleadings for justice included in the Directive and will be left alone with the heavy task of transforming them into actual rulings. In both cases, it does not seem likely that the Directive will achieve a large degree of harmonization of the national antitrust damages rules. In view of the increased complexity of some of the compensation rules it is also questionable whether we will see an overall improvement in the effectiveness of private enforcement in most member states, where it is needed. The only objective, which the Directive expressly intends to serve and might actually succeed in doing, is the coordination of private (private) and public enforcement (public enforcement) rules of competition, albeit here also with some degree of uncertainty.

The Interaction of Public and Private Enforcement of Competition Law Before and After the EU Directive – a Hungarian Perspective

The paper explores the changes the EU Directive on harmonizing certain rules governing actions for damages under national law for infringements of the competition law provisions will bring about in Hungary, with a special focus placed on damages liability rules, the interaction of public and private enforcement of these rules, and the importance of class actions. Amendments of the Competition Act introduced in 2005 and 2009 had created new rules to promote the idea of private enforcement even before the Directive was adopted. Some of these rules remain unique even now, notably the legal presumption of a 10% price increase for cartel cases. However, subsequent cases decided by Hungarian courts did not reflect the sophistication of existing substantive and procedural rules. There has only ever been one judgment awarding damages, while most stand-alone cases involved minor competition law issues relating to contractual disputes. The paper looks at the most important substantial rules of tort law (damage, causality, joint and several liability), the co-operation of competition authorities and civil courts, as well as at (the lack of) class action procedures from the perspective of the interaction of public and private enforcement of competition law.

Should Professionals in Employment Constitute ‘Undertakings’? Identifying ‘False-Employed’

This article argues for the recognition of some professionals in employment as ‘undertakings’ on the grounds that they are ‘false employed’—a term inspired by Dutch Orchestra which regarded some self-employed musicians as ‘false self-employed’ who lost their status as ‘undertaking’. It teases out the potential parameters of this category by drawing on labour law research and suggests that it extends beyond the liberal professionals to include professionals employed in, for example, financial services and IT. Adopting this approach would secure the applicability of Art 101TFEU (and, presumably, equivalent provisions of national competition law in some Member States) to anti-competitive decisions of professional associations whose membership includes many employees.

The Influence of the Chicago School on the Commission's Guidelines, Notices and Block Exemption Regulations in EU Competition Policy

AbstractAntitrust rules are fundamentally informed and shaped by economic theories. Given the significance of EU competition policy for the European integration process, it is essential to disentangle the economic theories underlying EU competition law. There is abundant theoretical and empirical literature examining the influence of ordoliberalism on EC/EU competition policy. However, in recent years, ordoliberal principles appear to have been replaced by neoliberalism and efficiency‐enhancing rationale in EU competition policy. This article puts forward the idea of clarifying whether the European Commission incorporates Chicago School theory into EU competition law provisions. The analysis is carried out on the basis of the European Commission's guidelines, notices and block exemption regulations. The analysis reveals that the Commission does, to a considerable extent, follow the Chicago School theory. The elements of the Chicago School theory hold strongest in vertical practices; they are somewhat weaker in horizontal practices and in unilateral exclusionary conduct.

The Blanket Prohibition of Disclosure of Corporate Statements Contained in Article 6(1) of the Proposed Directive for Actions for Antitrust Damages: Proportional Safeguard of Public Enforcement or Insurmountable Burden for Claimants?

The present paper will examine whether the blanket prohibition of disclosure of corporate statements contained in Article 6(1) of the draft proposal on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union is necessary to safeguard the attractiveness of the Commission's leniency programme or whether it represents an insurmountable burden for claimants that will in the long run severely hamper the private enforcement of EU Competition law (a most unfortunate outcome considering the main objective of the proposed Directive is precisely the opposite). On the one hand, excessive protection of leniency applicants' clemency submissions may lead to useless litigation and ultimately render the private enforcement of competition law in the EU pointless, as claimants are denied (purportedly) essential evidence for building stout damages cases. On the other hand, a more permissive approach towards the disclosure of such information may cripple the public enforcement of Competition law by discouraging cartelists to come forward in the first place. Given the fact that follow-on claims constitute a lion's share of current actions for antitrust damages brought in the EU, such a result would almost certainly have catastrophic consequences for individuals' right to compensation for the harm caused by infringements of Article 101 of the Treaty on the Functioning of the European Union as recognised by the European Court of Justice in the Courage and Crehan and Manfredi and others judgments. We conclude that the Commission seems to be privileging immunity recipients at the cost of injured parties by imposing remedies that are too far reaching for the protection of the effectiveness of the leniency programmes, especially taking into consideration the lack of conclusive evidence proving that disclosure of corporate statements would discourage potential leniency applicants from collaborating with the competition authorities in the first place. In light of this, we contend that a case-by-case approach such as the one envisaged by the European Court of Justice in Pfleiderer is more adequate to strike the balance between the injured parties’ right to redress and the effectiveness of the leniency programmes – at least for the time being.

European Collective Redress: A Status Quaestionis

This descriptive paper provides an unpretentious overview of recent collective redress developments in Europe, in particular on the European level and in four European jurisdictions. The aim is simply to describe recent legislative initiatives and reforms. The facts and nothing but the facts. Particular attention is paid to the recent EC Recommendation on common principles for injunctive and compensatory collective redress mechanisms. Its goal is not to harmonise the national systems, but to list some common, non-binding, principles relating both to judicial and out-of-court collective redress that Member States should take into account when crafting such mechanisms. At the same time, the EC issued a proposal for a Directive on certain rules governing actions for damages under national law for infringements of the competition law provisions, which is also briefly analysed. Finally, national collective redress developments in four European jurisdictions are described: the recent amendments to the 2005 Dutch Collective Settlements Act and the 2005 German Act on Model Case Proceedings in the Capital Markets (KapMuG), and the recent legislative reforms in France and Belgium to introduce a consumer class action.

Enforcement of Competition Rules in the Association Agreement between the EU & Ukraine

This article analyzes the legal preconditions for the harmonization of Ukrainian legislation in the field of competition law with the law of the European Union. Due to its evolution, it is noticeable that competition law has been, and remains, a priority in the harmonization process of Ukrainian legislation. This paper provides a detailed analysis of competition related provisions of the Association Agreement. The latter contains norms on the obligatory approximation of substantial competition law provisions and sets out the necessity to transform their enforcement system. Special attention is paid to the analysis of state aid which currently remains unregulated in Ukraine.

European Collective Redress Developments (August 2013)

The purpose of this brief note is to provide an overview of recent collective redress developments in Europe, in particular on the European level and four European jurisdictions: the Netherlands, Germany, France and Belgium. With respect to the European developments, attention is paid to the recent Recommendation of the European Commission on Collective Redress Mechanisms (in which it lists some common, non-binding, principles that Member States should take into account when crafting such mechanisms), the proposal for a Directive on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union, and the recent ADR Directive and ODR Regulation. Furthermore, the Dutch Act of June 26, 2013 amending the Dutch Collective Settlements Act, is discussed. The two most significant revisions are the applicability of the act in bankruptcy cases, and the introduction of a pre-trial hearing. Next, the 2012 amendments of the German KapMuG are analyzed. The most salient amendment is that class members now can register (announce) their claim with the court and the defendant and apply for model case treatment without having to initiate fully-fledged proceedings. Finally, the two recent class action proposals that were launched in France and Belgium are discussed.