Tag Archives: PR

Predatory pricing

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Predatory pricing

Predatory pricing in the European Union Law

Concept of Predatory pricing provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): A (deliberate) strategy, usually by a dominant firm, of driving competi-tors out of the market by setting prices below production costs. If the predator succeeds in driving existing competitors out of the market and in deterring the future entry of new firms, he can subsequently raise prices and earn higher profits. Predatory pricing by dominant firms is prohibited by EU competition law as () abuse of a () dominant position. Prices set below average variable costs can be presumed to be predatory, because they have no other economic rationale than to eliminate competitors, since it would otherwise be more rational not to produce and sell a product that cannot be priced above average variable cost. Where prices are set below average total (but above variable) costs, some additional elements proving the predator's intention need to be established in order to qualify them as predatory, given that other commercial considerations, like a need to clear stocks, may lie at the heart of the pricing policy.

Principle of presumption of innocence

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Principle of presumption of innocence

Non-Confidential version of the Decision Contents: Principle of presumption of innocence

As established by the General Court in case T-474/04 Pergan, findings relating to an infringement by any third parties who may have participated in the infringement but who are not mentioned in the operative part of the decision must be removed from the published version of the decision.

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In general, the adopted version of the decision should avoid references to any such undertakings, in particular in the Commission's narratives. It is however possible that, e.g. quoted documents, such as price tables found during inspections, contain names of undertakings that may have participated in the infringement but which is not mentioned in the operative part.

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References

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

Further Reading

  • Information about Principle of presumption of innocence in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Privilege against self-incrimination

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Privilege against self-incrimination

Privilege against self-incrimination

The questions should be framed so they do not solicit self-incriminatory replies.

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Where the addressee of a request for information pursuant to Article 18(2) Reg. 1/2003 refuses to reply to a question in such a request invoking the privilege against self-incrimination, as defined by the case-law of the Court of Justice of the European Union 1 , it may refer the matter in due time following the receipt of the request to the Hearing Officer, after having raised the matter with DG Competition before the expiry of the original time limit set 2 . The addressee may also simply not reply to this question.

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In appropriate cases, and having regard to the need to avoid undue delay in proceedings, the Hearing Officer may make a reasoned recommendation as to whether the privilege against selfincrimination applies and inform the director responsible of the conclusions drawn, to be taken into account in case of any decision taken subsequently pursuant to Article 18(3) Reg.1/2003. The addressee of the request shall receive a copy of the reasoned recommendation. The addressee of an Article 18(3) decision will be reminded of the privilege against self-incrimination as defined by case law of the Court of Justice of the European Union 3 This procedure allows discussions with the addressee on possibly self-incriminatory questions to be settled at an early stage, before issuing an Article 18(3) request (for details see section 5 below).

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References

  • Information about Privilege against self-incrimination in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Notes


[Note 1] See for example Case C-301/04 P Commission v SGL, [2006] ECR I-5915, which specifies that addressees of an Article 18(3) decision may be required to provide pre-existing documents, such as minutes of cartel meetings, even if those documents may incriminate the party providing them.
[Note 2] Article 4(2)(b) of the terms of reference of the Hearing Officer and Notice on Antitrust Best Practices, para. 36.
[Note 3] See footnote 33.

Further Reading

  • Information about Privilege against self-incrimination in “An Introduction to EU Competition Law”, Moritz Lorenz (Cambridge University Press)

Privilege against Self-Incrimination Basic Principle

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Privilege against Self-Incrimination Basic Principle

The Basic Principle

The privilege against self-incrimination protects undertakings against the obligation to reply to self-incriminating questions, i.e. to admit the existence of an infringement of EU competition law (in which they participated).

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According to the case law as established in Orkem 1 an undertaking can only invoke the privilege against self-incrimination if two conditions are fulfilled: (1) the undertaking was asked to admit the existence of an infringement of EU competition law (in which it participated) and (2) it was compelled to answer the question. However, the Best Practice Guidelines and the Hearing Officer's Mandate foresee the possibility for undertakings to raise concerns with DG Competition and the Hearing Officer about self incrimination already when they are the addressees of request for information pursuant to Article 18(2), in order to settle discussions at the earliest stage.

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The privilege against self-incrimination does not apply when answering questions asked in the context of requests made under Article 18(2) (simple requests for information, interviews, simple inspections). This is due to the fact that the undertaking is not compelled to answer these questions. It replies on a voluntary basis. If an undertaking replies in a self-incriminating manner to questions that it is not compelled to reply to (ie a reply which goes beyond the Commission's investigatory powers) that reply may be considered as spontaneous cooperation on the undertaking's part capable of justifying a reduction in a possible fine outside the scope of the Leniency Notice.

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References

  • Information about Privilege against Self-Incrimination Basic Principle in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Notes


[Note 1] Case 374/87, Orkem v. Commission [1989] ECR 3283

Further Reading

  • Information about Privilege against Self-Incrimination Basic Principle in “An Introduction to EU Competition Law”, Moritz Lorenz (Cambridge University Press)

Procedural practices of access to the file

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Procedural practices of access to the file

Different procedural practices of access to the file

According to the Notice on Antitrust Best Practices (paragraphs 95 et seq.), further to the possibilities contemplated in the Notice on access to file, there are two additional procedural practices that may be used for the purpose of alleviating the burden on the parties to redact their submissions in relation to confidential information. These procedural practices may be offered by DG Competition where it considers it to be useful, and are typically conducted in cases where there is only a limited number of undertakings. Both procedural practices can be beneficial not only for the party being granted access to file but also for the information providers since they would not have the burden of redacting their confidential material.

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References

  • Information about Procedural practices of access to the file in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Further Reading

  • Information about Procedural practices of access to the file in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Procedural steps

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Procedural steps

Procedural steps

The Commissioner in charge of competition is empowered to adopt decisions pursuant to Article 18(3) and Article 24(1) on behalf of the Commission (empowerment decision of 28.04.2004, PV(2004)1655). The Commissioner has sub-delegated to the Director-General for Competition both a) the power to adopt a decision requesting information under Article 18(3) of Regulation 1/2003 and b) the power to adopt a decision imposing (provisional) periodic penalty payments on undertakings or associations of undertakings.

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One has to distinguish: – decisions requesting information pursuant to Article 18(3) (without imposing periodic penalty payments); – decisions requesting information and imposing (provisional) periodic penalty payments pursuant to Article 18 (3) and Article 24 (1)(d)/24(2).

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References

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

Further Reading

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

Procedural steps

The initiation of the proceedings is immediately notified to the undertakings concerned. Pursuant to Article 2(2) Regulation 773/2004, the initiation of proceedings is to be communicated to the parties concerned prior to its making public in the appropriate way.

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The competition authorities of the Member States are to be informed of the initiation.

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If the case has EEA relevance, the EFTA Surveillance Authority (ESA) should be informed on the initiation of the proceedings.

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References

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

Further Reading

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

Procedure for Adoption of a Decision

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Procedure for Adoption of a Decision

Decision finding inapplicability: Procedure for Adoption of a Decision

In general, the procedure to follow in the case of an Article 10 Decision is the same as that for an Article 9 decision.

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References

  • Information about Procedure for Adoption of a Decision in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Further Reading

  • Information about Procedure for Adoption of a Decision in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Procedures for cooperation with third countries

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Procedures for cooperation with third countries

Principles and procedures for cooperation with other third countries

The following guidelines for the implementation of international agreements need to be respected when assessing a case which has an international dimension:

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References

  • Information about Procedures for cooperation with third countries in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Further Reading

  • Information about Procedures for cooperation with third countries in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Proceedings Effects

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Proceedings Effects

Effects

It is only after this initiation of proceedings that all other competition authorities are relieved, in accordance with said Article 11(6) and Articles 35(3) and 35(4), of their competence to apply Articles 101 and 102 TFEU to the same case.

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It is also only thereafter that, pursuant to Article 16 of Regulation 1/2003, all national courts must avoid giving decisions which would conflict with a decision contemplated by the Commission in proceedings it has initiated.

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References

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

Further Reading

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

Proceedings Initiation

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Proceedings Initiation

When to initiate the proceeding

Pursuant to Article 2 of Regulation 773/2004, the initiation of the proceeding can not be done later than the date on which the Article 27(4) Notice is published.

More about Proceedings Initiation

If the initiation of proceedings is a reaction to an envisaged decision communicated by a NCA to the Commission pursuant to Article 11(4), the proceedings need to be opened without delay. The procedural steps to follow in this case are explained in the chapters describing this procedure.

Resources

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References

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

Further Reading

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