Category Archives: H

Horizontal agreement

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Horizontal agreement

Horizontal agreement in the European Union Law

Concept of Horizontal agreement provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): Arrangement between actual or potential competitors, that is, under-takings operating at the same level of the production or distribution chain, covering, for example, research and development, production, purchasing or commercialisation. Horizontal agreements may restrict competition in particular where they involve price fixing or market sharing, or where the market power resulting from the horizontal cooperation causes negative market effects with respect to prices, output, innovation or the variety and quality of products. On the other hand, horizontal cooperation can be a means to share risk, save costs, pool know-how and launch innovation faster. In particular for small and medium-sized enterprises, cooperation can be important means to adapt to the changing market place.

(See so-called 'horizontal guidelines': Commission notice — guidelines on the applicability of Article 81 to horizontal cooperation agreements (OJ C 3, 6.1.2001, p. 2).)

Herfindahl-Hirschmann Index

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Herfindahl-Hirschmann Index

Herfindahl-Hirschmann Index (HHI) in the European Union Law

Concept of Herfindahl-Hirschmann Index (HHI) provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): Specific measurement of market concentration, that is, of the extent to which a small number of firms account for a large proportion of output. The HHI is used as one possible indicator of market power or competition among firms. It measures market concentration by adding the squares of the market shares of all firms in the industry. Where, for example, in a market five companies each have a market share of 20 %, the HHI is 400 + 400 + 400 + 400 + 400 = 2 000. The higher the HHI for a specific market, the more output is concentrated within a small number of firms. In general terms, with an HHI below 1 000, the market concentration can be characterised as low, between 1 000 and 1 800 as moderate and above 1 800 as high.

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.

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.

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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).)

Hearing Officer's powers to make recommendations

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Hearing Officer's powers to make recommendations

Hearing Officer's powers to make recommendations

The Hearing Officers can make recommendations in relation to two issues.

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First, under Article 4(2)(a) of the Terms of Reference, the Hearing Officer can be asked to review claims concerning the legally privileged nature of documents withheld from DG Competition by an undertaking. The undertaking must consent that the Hearing Officer reviews the relevant document. After having discussed his or her preliminary assessment with the undertaking and DG Competition, the Hearing Officer may make a recommendation to the Competition Commissioner.

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Second, under Article 4(2)(b), the Hearing Officer can be asked by an undertaking to make a recommendation on whether an addressee of a simple request for information pursuant to Article 18(2) may refuse to reply to a question by invoking the privilege against self-incrimination. The Hearing Officer may formulate a recommendation in appropriate cases, having regard to the need to avoid undue delay in the proceedings, and communicate his or her conclusions to DG Competition to be taken into account in case of any subsequent Article 18(3) decision.

Resources

See Also

References

  • Information about Hearing Officer's powers to make recommendations in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Further Reading

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

Hearing Preparatory steps

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Hearing Preparatory steps

Oral Hearing Preparatory steps

Invitations are sent by the Hearing Officer.

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Article 11 of the HO Terms of Reference provides that the Hearing Officer shall take all appropriate measures to ensure the proper preparation of the hearing.

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In this respect, the Hearing Officer may, after consulting the Director responsible, supply in advance to the parties invited to the hearing a list of the questions on which s/he wishes them to make known their views. The Hearing Officer may also indicate to the persons invited to the hearing the focal areas for debate, having regard in particular to the facts and issues that the addressees of an SO want to raise.

Other Considerations

In addition, after consulting the Director responsible, the Hearing Officer may hold a meeting with the parties invited to the hearing and, where appropriate, the Commission staff, in order to prepare for the hearing itself.

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The Hearing Officer may also ask for prior written notification of the essential contents of the intended statement of persons, whom the parties invited to the hearing have indicated will speak.

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The Hearing Officer may set a time limit for all persons invited to the hearing to provide a list of participants who will attend the hearing. The list should be made available by the Hearing Officer in due time before the hearing.

Resources

See Also

References

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

Further Reading

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

Hearing Recording

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Hearing Recording

Recording of the hearing

Article 14(8) of Reg. 773/2004 provides that the statements of each party heard must be recorded and upon request the recording has to be made available to those who attended the oral hearing by the Hearing Officer. This is done by way of audio recording (no written minutes are prepared).

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After the hearing, the Hearing Officer sends a copy of the audio recording to the Antitrust Registry, who encodes it in the case management application. Parties who attended the hearing and have requested the audio recording may collect it at the Hearing Office. Parties who did not attend the hearing do not have a right to obtain a copy of the recording

Resources

See Also

References

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

Further Reading

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

How to prepare documents for publication

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How to prepare documents for publication

How to prepare documents for publication

This section deals with (i) the steps in the identification of information that may not be published, and (ii) the practical aspects of publication.

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As noted above, published texts may not contain: – confidential information, in particular business secrets, – personal data, – information the publication of which may jeopardize Commission investigations.

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Before publication, the case team consolidates (i) the accepted confidentiality requests of all parties, (ii) deletions of personal data and (iii) deletions of information the publication of which may jeopardize Commission investigations, and requests confirmation of all parties for this text.

Resources

See Also

References

  • Information about How to prepare documents for publication in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Further Reading

  • Information about How to prepare documents for publication in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

hypothetical applications

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hypothetical applications

hypothetical applications. Introduction

Two decisions: The Commission will need to issue two decisions when dealing with a hypothetical application. The first decision concludes that the nature and content of the evidence described in the list will meet the conditions set out in points 8(a) or 8(b) of the 2006 Leniency Notice. The second decision concludes that the evidence provided corresponds to the description made in the list and grants conditional immunity.

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Requirements as to the content of the descriptive list: The substantive evaluation of the value of the evidence is made in the first decision. If the evidence then supplied corresponds to the list, the second decision granting conditional immunity is automatic.

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In cases where the Commission already has considerable evidence in its possession, a hypothetical application may not be possible, because the Commission would not be able to evaluate from the hypothetical list whether the evidence was new or already in its possession.

Resources

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References

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

Notes

$$10%% For immediate applications, see Section 4.3 above.

Further Reading

  • Information about hypothetical applications in “An Introduction to EU Competition Law”, Moritz Lorenz (Cambridge University Press)