Monthly Archives: March 2015

Potential competitor

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Potential competitor

Potential competitor in the European Union Law

Concept of Potential competitor provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): A firm is treated as a potential competitor if there is evidence that this firm could and would be likely to undertake the necessary additional investments or other necessary switching costs to enter the relevant market in response to a small and permanent increase in prices. This assessment has to be based on realistic grounds: the mere theoreti-cal possibility to enter a market is not sufficient. Market entry needs to take place sufficiently fast so that the threat of potential entry is a constraint on the market participants' behaviour. Normally, this means that entry has to occur within a short period, for example, a period of maximum one year for the purposes of the block exemption regulation on vertical restraints. However, in individual cases longer time periods can be taken into account. The time period needed by companies already active on the market to adjust their capacities can be used as a yardstick to determine this period.

(See: Commission notice on the definition of the relevant market for the purposes of Community competition law, paragraph 24 (OJ C 372, 9.12.1997, p. 5); Commission Decision 90/410/EEC in Case Elopak/Metal Box–Odin (OJ L 209, 8.8.1990, p. 15); guidelines on vertical restraints, paragraph 26 (OJ C 291, 13.10.2000, p. 1).)

Hard-core restrictions

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Hard-core restrictions

Hard-core restrictions in the European Union Law

Concept of Hard-core restrictions provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): Refers to restrictions of competition by agreements or business prac-tices, which are seen by most jurisdictions as being particularly serious and normally do not produce any beneficial effects. They therefore almost always infringe competition law. Under EU law, the most prominent examples on the horizontal level include agreements between competitors that fix prices, allocate markets or restrict the quantities of goods or services to be produced, bought or supplied. Examples of hard-core restrictions in vertical relationships (that is, between undertakings operating at different levels of the production or distribution chain) are () resale price maintenance and certain territorial restrictions. Provisions of an agreement that contain such restrictions are also referred to as black clauses and prevent the agreement from benefiting from a block exemption. Furthermore, agreements containing black clauses can only exceptionally be exempted on the basis of an individual assessment.

Resources

See also

  • Block exemption
  • Individual exemption

Hearing

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Hearing

Hearing in the European Union Law

Concept of Hearing provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): Opportunity for parties, to whom the Commission has addressed objections for violation of EU competition law, to make their views known. In order to respect the parties' right to be heard, the Commission must in its final decisions only deal with objections on which the parties were afforded the possibility to present their position. This is normally done in writing and — upon the parties' request — orally in a meeting with the Commission services where representatives of Member States are also present. The oral hearing is conducted by the () hearing officer. Likewise, where the Commission rejects a complaint, or, conversely, raises objections relating to an issue in respect of which it received a complaint, it must give the complainant the opportunity to make his views known. Moreover complainants, and third parties showing a sufficient interest, have a right to be heard in writing and may also be given the opportunity to develop their views at the oral hearing.

Know-how

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Know-how

Know-how in the European Union Law

Concept of Know-how provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): Specific knowledge held by an individual or a company on a product or production process, often obtained through extensive and costly research and development (R & D). Under the Community competi-tion rules know-how is normally deemed to be a body of technical information that is secret, substantial and identified. 'Secret' means that the know-how package as a body, or in the precise configuration and assembly of its components, is not generally known or easily accessible. 'Substantial' means that the know-how includes informa-tion that must be useful. 'Identified' means that the know-how is described or recorded in such a manner as to make it possible to verify that it satisfies the criteria of secrecy and substantiality.

Free riding

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Free riding

Free riding in the European Union Law

Concept of Free riding provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): Free riding occurs when one firm (or individual) benefits from the actions and efforts of another without paying for or sharing the costs. For example, a retail store may initially choose to incur costs of training its staff to demonstrate to potential customers how a partic-ular kitchen appliance works, in order to expand its sales. However, the customers may later choose to buy the product from another retailer who is able to sell it at a lower price because his business strategy is to do without such training and demonstration, thus avoiding the costs involved. This second retailer is thus viewed as 'free-riding' on the efforts and costs incurred by the first retailer, who will lose the incentive to continue demonstrating the product.

Wholesaler

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Wholesaler

Wholesaler in the European Union Law

Concept of Wholesaler provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): Intermediate in the distribution chain that buys the product in mass quantity from the manufacturer, and sells it in smaller quantities to distributors or retailers.

Block exemption

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Block exemption

Block exemption (regulation) in the European Union Law

Concept of Block exemption (regulation) provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): Regulation issued by the Commission or by the Council pursuant to Article 81(3) of the EC Treaty, specifying the conditions under which certain types of agreements are exempted from the prohibition on restrictive agreements laid down in Article 81(1) of the EC Treaty. When an agreement fulfils the conditions set out in a block exemp-tion regulation, individual notification of that agreement is not neces-sary: the agreement is automatically valid and enforceable. Block exemption regulations exist, for instance, for vertical agreements, R & D agreements, specialisation agreements, technology transfer agreements and car distribution agreements.

Hearing officer

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Hearing Officer

Information to be provided to the Hearing Officer

When the SO is issued, the case team needs to provide the Hearing Officer secretariat with the following information: – the names and positions of the persons representing the companies concerned and/or their legal advisers (with their powers of attorney) and their complete addresses, fax numbers and e-mail addresses; – languages of the procedure, participation or not by ESA and estimated number of participants (for booking meeting room); – electronic versions of the SO in the available languages and replies, as soon as available (the Hearing Officer secretariat will transmit to the interpreters) ; – a copy of the DVD sent to the parties for access to file, as well as any access to corporate statements at DG Competition's premises at their request.

More about Hearing Officer

The case-team should double-check carefully the material prepared for the hearing in order to avoid any inadvertent disclosure of information covered by professional secrecy (note that the confidential version of all documents should however be made accessible to the Hearing Officer).

Resources

See Also

References

  • Information about Hearing Officer in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Further Reading

  • Information about Hearing Officer in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Hearing officer in the European Union Law

Concept of Hearing officer provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): An independent senior official who is charged with organising hearings and with ensuring that they are properly conducted. The hearing officer thus contributes to the objectivity of the hearing itself, the observance of due process, the respect of the parties' rights of defence and the objectivity of any decision taken subsequently. The tasks of the hearing officer also include resolving disputes between the Commission services and the parties concerned about the confi-dentiality of documents and access to the file which one or more of the parties claim in order to prepare their defence. The hearing officer reports to the Commissioner with special responsibility for competi-tion; his final report on a competition case is attached to the decision and published in the Official Journal. The terms of reference of the hearing officer are laid down in a Commission decision.

(See: Commission decision of 23 May 2001 on the terms of reference of hearing officers in certain competition proceedings (OJ L 162, 19.6.2001, p. 21); as regards the respect of fundamental rights, especially the right to be heard and the right of access to the file, in the context of the Commission's enforcement action in competition matters, see also Articles 41 and 48 of the Charter of Fundamental Rights of the European Union (OJ C 80, 10.3.2001, p. 1).)

Notification

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Notification

Notification in the European Union Law

Concept of Notification provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): Formal information that firms provide to the Commission under EU antitrust and merger law in certain situations and that concern agree-ments they plan or have concluded.

Notification of restrictive agreements is not compulsory, but under-takings which put them into effect risk that civil law courts will find them contrary to Article 81(1) of the EC Treaty and will not enforce them ( Nullity) in application of Article 81(2). There is also the risk that the Commission or national cartel authorities adopt prohibition decisions (possibly with fines) on the basis of Article 81 of the EC Treaty. If undertakings wish to benefit from an exemption ( Individual exemption) or to obtain a () negative clearance, they have to notify the agreement to the Commission under () Regulation No 17 on the basis of () form A/B. However, notifica-tion for exemption is not necessary if the agreement in question is covered by a () block exemption regulation. Notification of an agreement affords the companies concerned immunity from fines under Article 15 of Regulation No 17.

The merger regulation obliges undertakings to notify any concentra-tion with a Community dimension to the Commission on the basis of () form CO, normally within one week of the conclusion of the concentration agreement. The participating undertakings are not allowed to put the concentration into effect before its notification and before the Commission has declared it compatible with the common market.

Commission notice

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Commission notice

Commission notice in the European Union Law

Concept of Commission notice provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): Interpretative text adopted by the Commission in order to facilitate the application of competition rules and to provide for transparency and legal certainty with regard to the Commission's administrative practice. These texts are sometimes also referred to as guidelines and are published in the Official Journal of the European Communities. They can also be found on the web site of Competition DG.

(See: http://europa.eu.int/comm/competition/indexŠen.html)