EU COMPETITION LAW AND ECONOMICS

Transcription

1 EU COMPETITION LAW AND ECONOMICS DAMIEN GERADIN ANNE LAYNE-FARRAR NICOLAS PETIT OXPORD UNIVERSITY PRESS

2 CONTENTS About the Authors Tables of Cases Table of Commission Decisions Tables of Legislation ix xi xxiii xxxi 1. Introduction 1 /. The Ubiquity ofeu Competition Law 1.01 A. Impact of EU Competition Law on Public and Private Decision-Makers 1.03 B. The Positive Economic Effects of EU Competition Policy 1.09 //. The History ofeu Competition Law 1.32 A. Origins of Competition Laws 1.33 B. Appearance of Modern Competition Laws 1.39 C. Modernization of EU Competition Law 1.56 ///. The Goals of EU Competition Law, 1.61, A. Economic Goals 1.61 B. European Integration Goals 1.73 TV. The Sources ofeu Competition Law 1.81 " A. Treaty Law 1.81 B. Secondary Law 1.97 C. Case Law V. The Scope of Application ofeu Competition Law A. Scope Ratione Personae To Whom Does EU Competition Law Apply? B. Scope RationeMateriae To What Sectors Does Competition Law Apply? ' C. Scope Ratione Loci Where is EU Competition Law Applied and Enforced? Elements of Competition Law Economics 59 /. Introduction 2.01 //. Epistemology of Competition Economics 2.10 A. Classical and Neoclassical Competition Economics 2.10 B. The Normative Economics of Competition 2.35 ///. Methodology of Competition Economics 2.55 A. The Concept of Market Power 2.56 B. Measuring Market Power 2.62 C. Measuring Market Power, Indirectly 2.83

3 D. Other Useful Economic Concepts Competition Law, Law ofcosts U 3. The Law and Economics of Anticompetitive Coordination 105 /. Article 101(1) TFEU The Prohibition Rule 3.04 A. The Legal Component of Article 101(1) TFEU A Concurrence of Wills between Several Independent Undertakings 3.07 B. The Economic Component of Article 101(1) TFEU A Restriction of Competition 3.70 C. The Jurisdictional Component of Article 101(1) TFEU A Restriction 'Within the Internal Market' Which Affects Trade between Member States' //. Article 101(2) TFEU The Rule of Nullity A. The Principle B. The Practice ///. Article 101(3) TFEU The Exception Rule A. Overview of the Exception Rule B. The Application ofthe Four Conditions of Article 101 (3) TFEU Abuse of Dominance 175 /. Introduction 4.01 //. Determining Dominance ' 4.04 A. Market Definition 4.05 B. Dominance 4.48 III.'The Notion of Abuse A. Exclusionary Abuses B. Exploitative Abuses C. Price Discrimination Enforcement, Institutions, and Procedure 321 /. Introduction 5.01 //. The Institutional Framework 5.08 A. The Commission 5.09 B. The National Competition Authorities 5.27 C. Interplay ofthe Commission and NCAs within the ECN 5.38 D. The National Courts 5.71 ///. The Procedural Framework 5.90 A. The Detection of Infringements 5.91 B. The Investigation of Alleged Infringements C. The Evaluation of Infringements D. The Decision E. Final Remarks TV. The Judicial Framework A. Acts Subject to Annulment Proceedings B. Persons that can Start Annulment Proceedings ^ VI

4 C. Modalities of Annulment Proceedings D. Parallel and Subsequent Actions to Annulment Proceedings E. Scope and Intensity of Judicial Review in Annulment Proceedings Cartels and Other Horizontal Hardcore Restrictions 391 /. The EU Anti-Cartel Policy 6.01 //. Substantive Cartel Law 6.15 A. Substantive Scope of Application What Agreements Constitute Hardcore Cartels? 6.15 B. Personal Scope of Application What Undertakings are Liable for Hardcore Cartels? C. Temporal Scope of Application Are There Time Limits for Pursuing a Hardcore Cartel? 6.75 ///. Institutional Aspects of Cartel Law 6.78 A. Deterring Hardcore Cartels 6.78 B. Litigation Relating to Cartels and Hardcore Restrictions Horizontal Cooperation Agreements 423 /. Introduction 7.01 //. The Law Applicable to Horizontal Cooperation Agreements 7.06 A. Origin of Applicable Texts 7.06 B. Scope of Application of the EU Framework ///. Principles of Competition Analysis Applicable to Horizontal Cooperation Agreements 7.16 A. Basic Principles of Competition Analysis of Horizontal Cooperation Agreements 7.16 B. Specific Principles for Competition Analysis (By Type of Cooperation) 7.22 C. Conclusions The Law and Economics of Vertical Restraints 463 /. Introduction, 8.01 //. Types of Vertical Restraint 8.06 A. The Issue \ 8.06 B. The Exclusive Contractual Relationship Group 8.08 C. The Resale Price Maintenance Group 8.18 D. The Limited Distribution Group 8.21 E. The Market-Sharing Group 8.29 F. The Buyer Power Group ' 8.38 ///. A Step-by-StepMethodfortheSelf-AssessmentofVerticalRestrictions 8.45 A. Screening of Vertical Restraints 8.47 B. Full-Blown Competition Analysis of Vertical Restraints 8.86 TV Online Distribution A. The Context B. The New Framework for Online Distribution V. Conclusions Vll

5 9. Merger Control 497 /. Introduction 9.01 A. History ofthe Development of an EU Merger Control Regime 9.02 B. The Concept of Concentration in EU Competition Law 9.06 II. Regulation 139/ A. Should the Concentration be Notified? 9.18 B. Is the Concentration Compatible with the Common Market? ///. The Institutional and Procedural Implementation of Merger Control A. The Informal Pre-Notification Procedure B. The Formal Notification Procedure C. Merger Litigation D. Conclusions Myths and Reality of Merger Control Index of Names 541 Generallndex 543 via