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Global Competition Law
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Global Competition Law
A Practitioner’s Guide
Published in 2012
ISBN 978-2-915029-51-2
LawLex - 76 rue de la Pompe, 75116 Paris
The decisions cited in the footnotes followed by a LawLex number are available in full in the
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© - SAS LawLex - 2012
Global Competition Law
Louis Vogel
Founding Partner, Vogel & Vogel
Professor of law, Panthéon-Assas / Sorbonne University
Global competition law
5
Table of contents
Preface
Part 1 EU & Member States
Chapter 1 European Union........................................................................................................9
Chapter 2 Austria ........................................................................................................................83
Chapter 3 Belgium ......................................................................................................................93
Chapter 4 Bulgaria ......................................................................................................................103
Chapter 5 Croatia........................................................................................................................113
Chapter 6 Cyprus........................................................................................................................123
Chapter 7 Czech Republic .........................................................................................................131
Chapter 8 Denmark ....................................................................................................................139
Chapter 9 Estonia........................................................................................................................142
Chapter 10 Finland .....................................................................................................................161
Chapter 11 France .......................................................................................................................169
Chapter 12 Germany ..................................................................................................................183
Chapter 13 Greece ......................................................................................................................195
Chapter 14 Hungary ...................................................................................................................205
Chapter 15 Ireland ......................................................................................................................213
Chapter 16 Italy...........................................................................................................................221
Chapter 17 Latvia........................................................................................................................231
Chapter 18 Lithuania..................................................................................................................241
Chapter 19 Luxembourg ............................................................................................................251
Chapter 20 Malta ........................................................................................................................255
Chapter 21 The Netherlands.....................................................................................................265
Chapter 22 Poland ......................................................................................................................273
Chapter 23 Portugal ....................................................................................................................281
Chapter 24 Romania...................................................................................................................291
Chapter 25 Slovak Republic.......................................................................................................301
Chapter 26 Slovenia ....................................................................................................................309
Table of contents
6
Chapter 27 Spain.........................................................................................................................317
Chapter 28 Sweden .....................................................................................................................327
Chapter 29 United Kingdom.....................................................................................................337
Part 2 Other Countries
Chapter 30 Argentina .................................................................................................................357
Chapter 31 Australia ...................................................................................................................365
Chapter 32 Brazil ........................................................................................................................377
Chapter 33 Canada .....................................................................................................................387
Chapter 34 Chili..........................................................................................................................399
Chapter 35 China (People’s Republic of ).................................................................................405
Chapter 36 Colombia .................................................................................................................413
Chapter 37 Iceland......................................................................................................................421
Chapter 38 India..........................................................................................................................429
Chapter 39 Israel .........................................................................................................................435
Chapter 40 Japan.........................................................................................................................445
Chapter 41 Liechtenstein...........................................................................................................459
Chapter 42 Mexico......................................................................................................................467
Chapter 43 Morocco...................................................................................................................473
Chapter 44 New Zealand ...........................................................................................................479
Chapter 45 Norway.....................................................................................................................487
Chapter 46 Russia .......................................................................................................................495
Chapter 47 Singapour.................................................................................................................503
Chapter 48 South Africa ............................................................................................................511
Chapter 49 South Korea.............................................................................................................521
Chapter 50 Switzerland..............................................................................................................529
Chapter 51 Turkey.......................................................................................................................539
Chapter 52 Ukraine.....................................................................................................................547
Chapter 53 USA..........................................................................................................................555
Appendix Websites of the Competition Authorities............................................................589
Preface
As its name suggests, Global Competition Law is a Practioner’s Guide. Its aim is not to present
a scientific and exhaustive table of most of the world’s competition laws, in particular those of the
European Union and its Member States, but rather to present their salient aspects by providing the
practitioner with an overview of their structure and most characteristic elements.
For that reason, the plan employed is the same for all countries, with a few adjustments sometimes
required because of the specific nature of the laws in question; the rules relating to unfair conduct do
not feature, except where they are integrated into the country’s competition law, and those relating
to anticompetitive practices (restrictive agreements and abuse of dominant position or monopolizations) are examined first, followed by those pertaining to the control of concentrations.
Although Global Competition Law is primarily a practical guide, it also provides some general
insights with regard to future developments.
Firstly, it is clear that the world of competition law is today divided into two groups, corresponding to two different conceptions of competition.
The European model continues to see competition law as an instrument in the service of the State
or its institutions, and this is reflected in the fact that the administrative authorities are generally
competent in the first instance, that administrative repression is prevalent and that private actions
remain rare. These rules of enforcement exist in parallel with the somewhat rigid substantive rules –
but which are easy to apply - generally based on the principle of prohibition/exemption.
This construction can also be explained by efficiency considerations, with the detection and
punishment for infringements entrusted to the same authorities, whereas the ordinary courts in
Europe are ill-equipped and in general the judges have little training in competition issues.
In contrast, the American model places competition within society itself: courts and private parties
play the essential role, and appear to operate as veritable “private prosecutors” demanding the imposition of sanctions, notably by way of punitive damages. The rules are more flexible and allow more
room for assessment on the merits; restrictive agreements are not prohibited – subject to exceptions
- but assessed in the light of a rule of reason; not only abuses of dominance but all acts of monopolization are sanctioned i.e. all behaviors resulting in the creation of such position.
Looking at the facts, however, we see that the European systems have become appreciably more
relaxed and the European guidelines are looking more and more like those in force in the US,
especially in the field of merger control. On the other hand, the European laws do have a serious
disadvantage in that they confuse the functions of investigation and judgment and there is a relatively
weaker protection of the rights of defense than in the American model.
In addition, with the increase in covert anticompetitive behavior, the effectiveness of administrative law enforcement has now been called into question and the application of competition law
increasingly left to the parties themselves; it is no coincidence that the European Commission is
planning to introduce class actions in competition law or that there has been such a rapid development of leniency programs within European countries.
It is likely that in the future, the European systems will become more judicial-based, using specialized courts before which private parties and administrative authorities can bring their actions.
Correlatively, political control, particularly in the area of mergers, will see its influence decline,
although the European-based laws will never seek to defend competition or favor efficiency for their
own sakes and will continue to pursue extra-competitive objectives such as the protection of jobs, the
environment, or simply, the public interest.
A change in the European model seems predictable in the short term. This reform must not be
limited to importing a few American characteristics to the existing institutions. If, in the future,
private parties can more easily claim compensation for harm suffered, there is no reason, other than
to punish the perpetrators of anticompetitive practices twice, for the State to continue to impose very
heavy administrative fines in order to repair the “damage to the economy”, as it is formulated under
French law.
As Global Competition Law demonstrates, a legal system forms a whole: in order to improve it,
it is not enough to merely incorporate the «good parts» from somewhere else; a whole new balance
must be struck.
Louis Vogel
Paris, October 2012.
Part 1
EU & Member States
Global competition law
11
Chapter 1
European Union
Section 1 Anticompetitive practices
Sub-section 1 Substantive rules
I. Context and scope
A. Context
Treaty provisions 1.01
Sectoral regulations 1.02
European Economic Area 1.03
B. Scope
Extraterritorial application 1.04
Effect on trade between Member States 1.05
Scope ratione personae 1.06
Scope ratione materiae 1.07
II. Restrictive agreements
A. The prohibition
Scope 1.08
a) Restriction on competition
Existence of competition likely to be restricted 1.09
Relevant market 1.10
Object or effect 1.11
Appreciability 1.12
b) Concertation
Agreements 1.13
Decisions of associations of undertakings 1.14
Concerted practices 1.15
1.16. Complex infringements
c) Several undertakings
Intra-group agreements 1.17
Representation and subcontracting agreements 1.18
B. Rule of reason and exemptions
a) Rule of reason
Does the rule of reason still exist? 1.19
b) Individual exemptions
Scope 1.20
The European Commission’s assessment 1.21
c) Block exemptions
Context 1.22
Vertical restraints 1.23
Horizontal restraints 1.24
C. Types of restraints
a) Horizontal restraints
Definition 1.25
b) Vertical restraints
Definition 1.26
III. Abuse of dominance
The prohibition 1.27
A. Dominant position
Concept of dominance 1.28
a) Relevant market
Definition 1.29
Product market 1.30
Geographic market 1.31
b) Indicators of individual dominance
Market share criteria 1.32
Other factors 1.33
c) Collective dominance
Which connecting factors? 1.34
B. Abuse
a) The concept of abuse
From abusive exploitation to abusive exclusion 1.35
b) Types of abuse
Behavior constituting abuse 1.36
Sub-section 2 Enforcement
Context 1.37
I. Enforcement authorities
The European Commission 1.38
The national authorities 1.39
The national courts 1.40
II. Enforcement proceedings
A. Complaints and investigations
Complaints and ex officio enforcement 1.41
Investigations 1.42
Rights of defense 1.43
B. Proceedings before the Commission
Initiation of proceedings 1.44
a) Written phase
Commitments 1.45
Settlement 1.46
Statement of Objections 1.47
European Union
12
b) Oral phase
Hearings 1.48
C. Interim relief
Conditions 1.49
D. Enforcement by national courts
Nullity 1.50
Damages 1.51
III. Sanctions
Cease and desist orders 1.52
Fines 1.53
Leniency 1.54
IV. Appeals
Appeals against decisions of the Commission 1.55
Appeals to the Court of Justice 1.56
Section 2 Mergers
Context 1.57
I. Substantive rules
A. Scope
Concept of concentration 1.58
Thresholds 1.59
B. Relationship with national laws
Referral system 1.60
Exceptions to EU jurisdiction 1.61
C. Control criteria
The test 1.62
a) Competitive analysis
The relevant market 1.63
Non-coordinated effects 1.64
Countervailing effects 1.65
Coordinated effects/Collective dominant position 1.66
Failing company defense 1.67
b) Efficiency gains
Scope 1.68
II. Enforcement
A. Enforcement proceedings
a) Merger notification
Mandatory notification 1.69
Suspension of a concentration 1.70
b) Proceedings before the Commission
Two-stage procedure 1.71
Preliminary examination (Phase 1) 1.72
In-depth examination (Phase 2) 1.73
The decision 1.74
C. Conditions/Sanctions
Commitments - Divestiture 1.75
Fines 1.76
D. Appeals
Jurisdiction 1.77
Right to appeal 1.78
Section 3 State aids
I. Substantive rules
Context 1.79
A. Prohibited Aid
Concept 1.80
Transfer of State resources 1.81
Advantage conferred on the recipient 1.82
Selectivity 1.83
Restriction on competition 1.84
Effect on trade between Member States 1.85
B. Compatible aid
a) The Treaty
Aids that are automatically compatible 1.86
Aids that may be deemed compatible 1.87
b) Exemptions
Block exemption 1.88
Individual exemptions 1.89
C. Types
Regional aid 1.90
Sectoral aid 1.91
Horizontal aid 1.92
II. Enforcement
Context 1.93
A. Enforcement authorities
EU authorities 1.94
National authorities and courts 1.95
B. Enforcement proceedings
Mandatory notification 1.96
Preliminary examination 1.97
Initiation of a formal investigation procedure 1.98
Commission decision 1.99
Recovery of illegally granted aids 1.100
Appeals 1.101
Global competition law
13
Section 1 Anticompetitive practices
Sub-section 1 Substantive rules
I. Context and scope
A. Context
1.01. Treaty provisions
The basic European Union competition rules are found in the Treaty on the Functioning of the
European Union (TFEU) at Articles 101 and 102, which lay down a prohibition against restrictive
agreements and abuse of dominance respectively. Article 106 is also of interest since it extends the
scope of competition law to public undertakings, where its application does not prevent such undertakings from carrying out the functions assigned to them. Those provisions were supplemented by a
number of block exemption regulations on horizontal and vertical agreements and their guidelines
and by procedural regulations enabling their implementation.
1.02. Sectoral regulations
Some sectors may be referred to as “specific” as competition law does not apply to them at all or
does not apply with the same intensity as elsewhere, either because of political reasons, of the economic conditions of the sector or as part of the liberalization scheme of sectors which had been State
monopolies.
1º) Defense industries
Article 346(1)(b) TFEU provides that, “any Member State may take such measures as it considers
necessary for the protection of the essential interests of its security which are connected with the
production of or trade in arms, munitions and war material; such measures shall not adversely affect
the conditions of competition in the internal market regarding products which are not intended for
specifically military purposes”. The Council has drawn up a list of the products to which the provisions of paragraph 1(b) apply. Like any exception, Article 346 must be strictly interpreted; where
products can have both a civil and military use, the competition rules will apply.
2º) Agriculture
Article 39 TFEU provides that the enforcement of competition rules should not prevent the
objectives of the common agricultural policy from being attained. Applying that principle, Article 42
provides that, “the provisions of the Chapter relating to rules on competition shall apply to production of and trade in agricultural products only to the extent determined by the European Parliament
and the Council”. According to Regulation No 1184/2006 of 24 August 2006, the prohibition of
restricted practices shall not apply to “agreements, decisions and practices as form an integral part
of a national market organization or are necessary for attainment of the objectives set out in Article
[39] of the Treaty”.
3º) Transport
Article 100(1) TFEU provides that transport by rail, road and inland waterway are governed by
Title VI of the Treaty and Article 100(2), that the Treaty confers upon the European Parliament
and the Council, acting in accordance with ordinary legislative procedure, the power to decide “appropriate provisions for sea and air transport”. Regulation No 17/62 had excluded the transport
sector from its scope of application and made each type of transport subject to specific regulations.
Regulation No 1/2003 has only left the substantial provisions of those specific regulations and has
removed specific procedural rules. The Commission’s current policy consists in progressively putting
an end to exemptions in the field of transports and in adopting directives for the liberalization of the
sector.
European Union
14
4º) Electricity and gas
Both the electricity and gas directives (respectively Dir. No 2003/54 and No 2003/55 of 26 June
2003) lay down the principle of the distinction between undertakings which own transmission or
storage facilities from transmission system operators, which involves, for vertically integrated undertakings, distinguishing between entities. The opening up of competition between electricity and gas
suppliers has been total for undertakings since 1 July 2004, and for other users since 1 July 2007.
Network access must be non-discriminatory, and the effective function of the market is ensured by
independent regulatory authorities.
5º) Postal and electronic communications
The objective of the telecommunications directives (Common regulatory framework Dir. No
2002/19, 2002/21 and 2002/22 of 7 March 2002 and Dir. No 2002/77 of 16 September 2002) is to
guarantee equal access by all operators to the various telecommunication services and networks. To
that end, the national regulatory authorities must identify in particular the markets on which operators “with significant market power” are active (former incumbent operators) and which have specific
obligations aimed at facilitating third parties’ access to the network. The opening up to competition
must be carried out whilst maintaining a universal service, which must be permanently provided at
all points in the territory at affordable prices for the benefit of all users.
1.03. European Economic Area
In 1992, the European Communities and the Member States of the European Free Trade
Association (EFTA) signed the Agreement on the European Economic Area, which came into force
on 1 January 1994. The purpose of this agreement was specifically to establish the free movement
of goods, persons, services and capital between the signatories, and to set up a system of undistorted
competition. Iceland, Norway and Lichtenstein are the only remainaing members of the EEA.
Articles 53, 54 and 59 of the EEA Agreement reproduce Articles 101, 102 and 106 of the TFEU.
Most of the Community regulations, notices and guidelines on competition have been transposed into
the EEA. The EEA competition rules, which are implemented by the EFTA Surveillance Authority,
may be directly relied upon in the national courts of the Member States of the European Union.
Article 56 of the EEA Agreement lays down the rules of allocation of jurisdiction between the
Commission and the EFTA Surveillance Authority. Where only trade between Member States of
the EU is affected, the Commission has exclusive jurisdiction. The same principle applies for the
EFTA Surveillance Authority where only trade between EEA or EFTA States is affected. If trade
between EU and EEA Member States is affected, the Commission has jurisdiction to apply the two
sets of rules where the turnover of the undertakings concerned in the territory of the EFTA is less
than 33% of their turnover in the EEA.
B. Scope
1.04. Extraterritorial application
EU law provides its own definition of its spatial scope of application. Article 101 prohibits agreements between undertakings having as their object or effect the restriction of competition “within
the internal market” and Article 102 prohibits the abusive exploitation of a dominant position “within the internal market or in a substantial part of it”. The applicability of the Treaty provisions thus
depends on a constituent part of the infringement being located on the EU territory. The type of
the link that has to exist between the anticompetitive practice and the Union has been laid down in
the case law. Although in the past the courts seemed to favor the “effects theory”, otherwise known
as the principle of objective territoriality, the EU authorities now appear to lean more towards the
“implementation theory”.
1º) Effects theory
Global competition law
15
Article 101 TFEU is applied where the effects of alleged restrictive agreements or practices by
undertakings are felt within the Union. The fact that some of those undertakings are based outside
the Union is irrelevant. Conversely, the provision does not apply to agreements between undertakings only producing effects on exterior markets. While the EU authorities regularly confirm their
concurrence with the effects theory, they seem rather reluctant to implement it, both because the
international scope of the doctrine is too broad and perhaps also because the political influence of the
Union - which is not a State, but an international organization - is insufficient.
2º) Single economic entity theory
EU competition law is, in theory, only applicable if there is a link between the EU and the agreement or practice at issue. According to the terms of Articles 101 and 102 TFEU, the link results
from anticompetitive effects produced on the territory making up the internal market. However,
when the external undertakings have subsidiaries on the EU territory, the anticompetitive behavior, as well as the restrictive effects, are located in the Union and in those circumstances the EU
authorities do not need to refer to the effects theory: the unlawful behavior is first attributed to the
subsidiaries and then to the parent company established elsewhere. However, in order to do this, a
relationship of control must be established and that control must be effective. The single economic
entity theory has the advantage of avoiding the implementation difficulties related to the extraterritorial application of competition law.
3º) Implementation theory
The control authorities now seem to replace the “effects” criterion with the more restrictive “implementation” theory, as it avoids all the subjective assessments that they would have to make in
order to qualify the effect. For EU competition law to apply, it is not necessary that the behavior of
the undertaking is fully realized within the EU territory, but it is not enough either that anticompetitive effects are produced on it. The anticompetitive behavior must have been implemented in the
internal market. The implementation or “qualified behavior” criterion requires that a chronological
and material distinction be made between the different acts making up the anticompetitive behavior:
only a definite act, binding in its scope, is relevant to trigger the jurisdiction of the Union in respect
of enterprises located in non-Member countries.
1.05. Effect on trade between Member States.
Articles 101 and 102 TFEU apply to practices or behavior which “may affect trade between Member
States”. The Commission has adopted Guidelines on the effect on trade concept contained in Articles
101 and 102 of the Treaty (No 2004/C 101/07 of 27 April 2004), setting out the principles developed
by the EU Courts and providing guidance on its application in frequently occurring situations.
The concept of “trade between Member States” implies that there must be cross-border economic
activity involving at least two Member States. However, the fact that a restrictive agreement relates
only to the marketing of products in a single Member State is not sufficient to exclude the possibility that trade between Member States might be affected. Articles 101 and 102 TFEU also apply to
practices which only produce an effect on a part of a Member State, provided however that the effect
on trade flows is appreciable. Measures intended to isolate the market of a Member State are, by their
nature, likely to affect trade. This is true of agreements or practices which have as their object the
obstruction of the entry on the market by competitors established on the territory of other Member
States, prohibiting exports or behavior relating to products imported from another Member State
or intended for export. Finally, the concept of “trade” also encompasses cases where the agreements
and practices affect the structure of competition on the market: any strategy for the elimination of a
competitor, which operates on the EU market, may fall within the scope of the EU rules of competition, even if its activity is essentially in exports.
To establish an “effect on trade between Member States”, the following two conditions must be
fulfilled:
- there must be a reasonable probability of effect: the courts may evaluate such probability on the
basis of factors which taken individually, would not necessarily be decisive (e.g. the type of agree-