Category Archives: T

Tied selling

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Tied selling

Tying or tied selling in the European Union Law

Concept of Tying or tied selling provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): Commercial practice of conditioning the sale of one product on the purchase of another product. If tying is not objectively justified by the nature of the products or their commercial usage, such practice may restrict competition. Economic theory suggests that a firm which enjoys () market power in one market (tying market) may, under certain conditions, be able to lever this market position or dominance into another market (tied market), squeeze competitors out of this second market and then raise prices above the competitive level. In a competition analysis perspective, the main negative effect of tying on competition is, therefore, possible () foreclosure on the market of the tied product. In addition tying may lead to higher prices for both the tying and the tied product.

Turnover threshold

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Turnover threshold

Turnover threshold in the European Union Law

Concept of Turnover threshold provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): The combined annual turnover of the parties is used in the field of merger control as a criterion to divide competence between Member States and the Commission. Concentrations where the parties' combined turnover exceeds the thresholds set in Article 1 of the merger regulation are considered to be of 'Community dimension' and will be assessed by the Commission.

Resources

See also

  • Merger control procedure

Trade

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Trade

Effect on trade between Member States in the European Union Law

Concept of Effect on trade between Member States provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): A necessary condition for the application of EU antitrust rules. Articles 81 and 82 of the EC Treaty are only applicable if there may be a direct or indirect, actual or potential influence on the flow or pattern of trade between at least two Member States of the EU. An effect on trade exists in particular where national markets are partitioned or the structure of competition within the common market is affected. Anti-competitive agreements or conduct that have no effect on trade, therefore, fall outside the scope of EU competition rules and may only be dealt with by national legislation.

The merger regulation, by contrast, applies where a concentration has a Community dimension defined in terms of () turnover thresholds.

Trustee

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Trustee

Trustee in the European Union Law

Concept of Trustee provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): A legal or natural person appointed in merger cases to oversee the implementation of () commitments, and to contribute to their implementation where required. The trustee is appointed by the parties who have offered commitments to the Commission with the Commission's approval. His powers and duties are set out in the trustee mandate, an agreement between the trustee and the parties — again subject to the Commission's approval. The trustee normally has the power to propose, and if necessary impose, measures on the parties to ensure compliance with the commitments, as well as an irrevocable mandate to effect the divestiture of the business or busi-nesses to be sold, at no minimum price, if the parties fail to do so within a given period.

(See: Commission notice on remedies (OJ C 68, 2.3.2001, p. 3).)

Taking position on immunity application

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Taking position on immunity application

Taking position on immunity application and establishing first priority assessment – a note to the Commissioner

Timing: The Commission will endeavour to take position on an immunity application in a short timeframe. However, the time needed will depend on the complexity of the case. For instance if the application is being considered under point 8(b) of the 2006 Leniency Notice and the Commission already has a significant amount of evidence or in a border-line case, where it is not clear whether the threshold is met. More time may also be needed in the case of oral applications (when a transcript of an oral corporate statement needs to be prepared).

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Internal Note to the Commissioner: The Commissioner must be informed whether in DG Competition's view the conditions of point 8(a) or, as the case may be, 8(b) of the 2006 Leniency Notice are fulfilled.

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Granting conditional immunity and asking for an agreement to inspections: In case it is proposed to grant conditional immunity, where appropriate, the Commissioner should normally be asked in the same internal note to agree in principle to the carrying out of surprise inspections. If such inspections are not proposed, the Commissioner should be informed of the reasons for this. When inspections (or other forms of investigative measures) are proposed, the internal note to the Commissioner should also contain a first priority assessment. The priority assessment can be kept fairly short and concise.

Other Considerations

Rejecting conditional immunity: If the evidence submitted with the application is clearly insufficient to meet the conditions of points 8(a) or 8(b) of the Leniency Notice, it is recommended that the Commission services should, as long as no other application has been received, advise the applicant of this informally and give it the opportunity to supplement the evidence.

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As mentioned above, an application for immunity may exceptionally be refused in the acknowledgement of receipt if it is clear that immunity is no longer available. In most cases, however, whether the application meets the criteria of points 8(a) or 8(b) of the Notice will require a substantive assessment. If, in such cases, the Directorate-General proposes to reject the application, the approval of the Commissioner should be sought.

Resources

See Also

References

  • Information about Taking position on immunity application in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Further Reading

  • Information about Taking position on immunity application in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

The oral hearing Organisation

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The oral hearing Organisation

The oral hearing – Organisation

Oral hearings are conducted by the Hearing Officer in accordance with Articles 10-13 of the HO Terms of Reference and with Article 14(1) of Regulation 773/2004.

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The following principles apply: – The oral hearing is not public. – The oral hearing takes place only if a party concerned expressly requests to be heard orally in its reply to the SO. If they do not do so, complainants and third parties do not have the right to request the organisation of an oral hearing. – After consulting the Director responsible for the case, the Hearing Officer fixes the date of the oral hearing. The hearing normally takes place between six to eight weeks after the parties' replies to the SO. – The Hearing Officer determines the agenda for the hearing and the order of the proceedings. – The Hearing Officer decides upon any requests that undertakings may make to be heard separately (in camera session).

Resources

See Also

References

  • Information about The oral hearing Organisation in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Further Reading

  • Information about The oral hearing Organisation in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Third parties replies to the Statement of Objections

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Third parties replies to the Statement of Objections

Parties, third parties and complaints

According to the Best Practices Notice 1 , where required by the rights of defence 2 , or where it may in the Commission's view help to further clarify factual and legal issues relevant for the case, the Commission may give parties a copy of the non-confidential version (or specific parts thereof) of other parties' written replies to the Statement of Objections. This would normally be done prior to the oral hearing, so as to allow parties to comment on them at the oral hearing. The Commission may also decide to do so in appropriate cases with respect to complainants and admitted third parties. If access to other parties' replies is granted because it is required for the rights of the defence parties are also entitled to have sufficient additional time to comment on these replies.

More about Third parties replies to the Statement of Objections

The parties' replies to the SO and observations made by other persons in accordance with Article 13 of Regulation 773/2004 constitute information which does not form part of the investigation file to which access to file is granted. In principle, the Commission terminates the investigation when the SO is issued. Accordingly, information received after this point in time does not form part of the investigation file. Otherwise, the proceedings could be delayed significantly by requests to comment on new documents submitted belatedly and subsequent requests to submit further remarks on such comments, with the result that the exercise would never end.

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Further access to file only needs to be granted if the Commission receives new documents which contain inculpatory or exculpatory information which could alter the allegations contained in the SO (see in more detail Module on Access to file).

Resources

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References

  • Information about Third parties replies to the Statement of Objections in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Notes


[Note 1] Commission notice on best practices for the conduct of proceedings concerning Articles 101 and 102 TFEU (OJ C 308, 20.10.2011, p. 6).
[Note 2] See Joined Cases T-191/98 and T-212/98 to T-214/98 Atlantic Container Line and Others v Commission [2003] ECR II- 3275; Case T-54/03 Lafarge v Commission [2008] ECR II-120, paragraphs 69-73; Case T-52/03 Knauf v Commission [2008] ECR II-115, paragraphs 41-47, 67-79; Case C-407/08P Knauf v Commission, judgment of 1 July 2010 (not yet reported), paragraphs 23-28.

Further Reading

  • Information about Third parties replies to the Statement of Objections in “An Introduction to EU Competition Law”, Moritz Lorenz (Cambridge University Press)

Time for observations submitted

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Time for observations submitted

When should observations be submitted?

a) How will DG Competition know about a pending case?

More about Time for observations submitted

DG Competition may have knowledge about individual cases from different sources, notably • because (one of) the parties inform(s) DG Competition (this does not oblige the Commission to act, though). Requests (e.g. by parties) to submit observations to a national court will be registered and passed to Unit A1; • because DG Competition receives a copy of the judgment under appeal pursuant to Art. 15(2) of Reg. 1/2003. Unit A1 or the competent sectoral unit may pro-actively wish to find out whether one of the parties seeks relief with the last instance court. Unit A1 unit or the competent sectoral unit will not contact the parties to this end, but it will consider whether information can be sought with the registry of the last instance court and may liaise with the LS in this respect.

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b) Timing

Other Considerations

It is advisable to coordinate the timing of submission of the intended amicus curiae observation at least informally with the addressee court.

Resources

See Also

References

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

Further Reading

  • Information about Time for observations submitted in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Time of the Information in Cooperation

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Time of the Information in Cooperation

When should the information be provided?

The Commission states in its Notice that it will endeavour to provide the information within one month from the date the Commission receives the request. In case DG Competition has to ask the national court for further clarification or where it has to consult those directly affected by the transmission (e.g. the undertakings that provided the information), the period starts to run from the moment DG Competition receives that additional information.

More about Time of the Information in Cooperation

In order to respect the one month deadline, it is advisable that the sectoral unit chef de file contacts Unit A1 when the request arrives and not only before the transmission of the information (see subsequent point (20)).

Resources

See Also

References

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

Further Reading

  • Information about Time of the Information in Cooperation in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Time of the Opinions in Cooperation

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Time of the Opinions in Cooperation

When should the opinion be provided?

The Commission states in its Notice that it will endeavour to provide the opinion within four months from the date the Commission receives the request. In case DG Competition has to ask the national court for further clarification, the period starts to run from the moment DG Competition receives that additional information.

More about Time of the Opinions in Cooperation

In order to respect the four months deadline, it is advisable that the sectoral unit chef de file contacts unit A1 when the request arrives and not only before the transmission of the information.

Resources

See Also

References

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

Further Reading

  • Information about Time of the Opinions in Cooperation in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)