MARIO SIRAGUSA

A SELECTION OF RECENT DEVELOPMENTS IN EU COMPETITION LAW (2010)

giuffr editore - 2011

Estratto dal volume:

CONCORRENZA E MERCATO 2011

antitrust, regulation, consumer welfare, intellectual property

A SELECTION OF RECENT DEVELOPMENTS IN EU COMPETITION LAW (2010)

di MARIO SIRAGUSA (*)

Abstract This article offers an overview of the main developments occurred in 2010 in EU Competition Law at level of the European Commission (Commission) and the Court of Justice of the European Union (including both the General Court and the Court of Justice), through a selection of relevant cases in relation to the application of Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU), European merger control rules, State aid provisions and procedural issues.
Keywords: Cartels; horizontal agreements; vertical agreements; abuses of dominant position; mergers; cartel settlement decisions; state aids; antitrust policy; antitrust procedure. JEL Classication: K21 Antitrust Law; K42 Illegal Behavior and the Enforcement of Law

SUMMARY: 1. Article 101 TFEU. 1.1. Cartels. 1.1.1. Commission decisions in cartel cases. 1.1.1.1. DRAM: Commission issues its rst cartel settlement decision. 1.1.1.2. Animal Feed Phosphates: Commission issues its rst hybrid cartel settlement decision. 1.1.2. Selection of judgments in cartel cases. 1.1.2. Recisdism and principle of proportionality. 1.1.2.2. The General Court provides clarications on the notion of single infringement and increases the reduction of the ne under the Leniency Notice). 1.2. Horizontal agreements. 1.2.1. Commission adopts revised competition rules on horizontal co-operation agreements. A. Standardization agreements. B. Information exchenge. C. R&D and specialization bers. 1.2.2. BHP Billiton/Rio Tinto JV abandoned following Commissions investigation. 1.2.3. Commission approves OneWorld Alliance. 1.2.4. General Court conrms rejection of EMC complaint concerning a standardization agreement. 1.3. Vertical Agreements. 1.3.1. The Commission Adopts New Rules on Vertical Agreements. A. Scope and structure of the New Rules on Vertical Restraints. B. Market share threshold. C. Hardcore Restrictions. 1. Resale Restrictions as Hardcore. a. Exclusive Distribution. b. Selective distribution. c. Hardcore restrictions outside Article 101 TFEU. 2. Resale Price Maintenance. D. Online Sales. E. Upfront Access Payments and Category Management. 1.3.2. The Commission Adopts New Motor Vehicle Block Exemption Regulation. 2. Article 102

(*) Visiting Professor - College of Europe, Bruges. Partner of Cleary Gottlieb Steen & Hamilton LLP, Rome.

RASSEGNA DEGLI ORIENTAMENTI COMUNITARI

TFEU. 2.1. Commitment decisions adopted by the Commission in the energy sector. 2.1.1. EDF: French electricity supply markets. 2.1.2. Svenska Kraftnat: Swedish electricity interconnectors market. 2.1.3. E.ON: German gas market. 2.1.4. ENI: Italian natural gas market. 2.2. Selection of jurisprudence concerning the application of Article 102 TFUE. 2.2.1. ALROSA: Proportionality and commitment decisions. 2.2.2. Deutsche Telekom: margin squeeze. 2.2.3. AstraZeneca: parallel imports. 2.2.4. Tomra: complex exclusionary strategies. 2.2.5. TeliaSonera: Opinion of the Advocate General on margin squeeze. 3. Merger. 3.1. Selection of Commission decisions. 3.1.1. Oracle/Sun Microsystems: Second-phase decision with non-traditional remedies. 3.1.2. TPG/IMS Health: Vertical effects. 3.1.3. Hewlett-Packard/3COM: Conglomerate effects. 3.1.4. Microsoft/Yahoo: Acquisition of an exclusive license. 3.1.5. Cisco/Tandberg: First-phase decisions with undertakings aimed at preserving interoperability in IT and telecommunication sectors. 3.1.6. Sky Italia: modication of commitments. 3.2. Selection of judgments concerning merger control. 3.2.1. Lagardere/ Editis: access to the Commission le by third parties and lawfulness of divestiture proceedings. 3.2.2. Ryanair/Aer Lingus. 4. State Aid. 4.1. Commission. 4.1.1. Financial crisis Temporary framework for State aid. 4.2. Selection of judgments concerning State Aid. 4.2.1. CELF: Reimbursement of unlawful aid. 4.2.2. Deutsche Post AG: Misuse of public resources to subsidy sales below cost. 4.2.3. Athinaki Techniki: Legal conditions for the withdrawal o f an administrative act in the context of State aid proceedings. 4.2.4. France and Others: The statements of the French authorities aimed at assuring France Tlcom of their support at a time when the operator was experiencing a major crisis cannot be classied as State aid. 4.2.5. Mediaset: Italian subsidy for digital terrestrial decoders as unlawful State aid in violation of technological neutrality. 4.2.6. Olympic Airways and Olympic Airlines: Economic continuity between the two companies for the purpose of recovering unlawful aid. 4.2.7. Ryanair: Access to le in State aid proceedings. 5. Policy and Procedure. 5.1. Commission. 5.1.1. Guidelines on Best Practices in Antitrust Proceedings, Submission of Economic Evidence and the Role of Hearing Ofcers. 5.1.2. Insurance Block Exemption: Regulation 267/2010 of the European Commission. 5.1.3. First Monitoring Report on patent settlement agreements in the pharmaceutical sector. 5.2. Selection of judgments concerning Policy and Procedure. 5.2.1. Akzo Nobel Chemicals Ld: The Court of Justice denies professional legal priviledge to employed lawyers 5.2.2. US Court rules that condential European Commission documents are not discoverable in US antitrust litigation. 6. Work in Progress. 6.1. Article 101 TFEU. 6.2. Article 102 TFEU.

1.

Article 101 TFEU.

1.1. Cartels. 1.1.1. Commission decisions in cartel cases. The Commission has been continuing to vigorously prosecute and sanction cartel activities in the European Union. To this end, in 2010, the Commission issued six cartel decisions (1) imposing a grand total of E 3,057,214,832 in nes (2) on a number of
(1) See: (i) Commission Decision of May 19, 2010, Case COMP/38.511 - DRAM; (ii) Commission Decision of June 23, 2010, Case COMP/39.092 - Bathroom Fittings and Fixtures; (iii) Commission Decision of June 30, 2010, Case COMP/38.344 - Prestressing Steel (as amended on September 30, 2010 to correct errors in the calculation of the nes imposed on ArcelorMittal, Emesa/Galycas/ArcelorMittal - Espaa, WDI/Pampus and Rautaruukki/Ovako); (iv) Commission Decision of July 20, 2010, Case COMP/38.886 - Animal Feed Phosphates; (v) Commission Decision of November 9, 2010, Case COMP/39.258 - Airfreight; and (vi) Commission Decision of December 8, 2010, Case COMP/39.309 LCD. Following the partial annulment by the Court of Justice of the 2001 carbonless paper cartel decision, on June 23, 2010, the Commission re-adopted a decision ning Bollor E 21.26 million for its participation in the cartel. The original decision was annulled because the Court of Justice considered that Bollors rights of defense were infringed because it could not have foreseen from the wording of the original Statement of Objections that the Commission