EC Competition Law Reform

Erscheinungsjahr 2002
ISBN: 978-1-57823-116-4
Verlag: Juris

Buch, Englisch, 580 Seiten

This volume includes selected chapters from the annual proceedings of the Fordham Corporate Law Institute. The general subject is the reform of EC competition law enforcement. This has been the subject of many Fordham conferences over the years. Indeed, EC Commission officials have stated that the modern reform proposals presently being considered had their roots at Fordham. The present volume includes seminal articles and critiques of the EC competition law regime as well as very recent discussions of the Commission's proposal for reform. Because much of the literature on EC competition law reform is scattered, the present volume should be useful in including in one place a broad selection of articles and roundtable discussions. The chapters cover not only institutional and jurisdictional issues like decentralization and sharing of powers between the Commission and the EC member states, but also substantive issues like the scope of Article 81 and the rule(s) of reason. These and other issues are examined from both an analytical and historical perspective which greatly facilitates understanding of the future implications of the reform measures presently being debated. In sum, the chapters are not merely of historical interest, but problems and questions of ongoing importance are discussed as well.

Autoren/Hrsg.

Hawk, Barry

Inhaltsverzeichnis

Introduction

Chapter 1

THE APPLICATION OF THE MODERNISED RULES IMPLEMENTING ARTICLES 81 AND 82 EC TREATY IN INJUNCTION PROCEEDINGS: PROBLEMS AND POSSIBLE SOLUTIONS

by August J. Braakman

I. Problems

A. The Present System

B. The New System

1. The Enhanced Importance of an Evaluation by the National Courts of the Economic and Legal Circumstances of the Case

2. Rules on Evidence

3. Rules on Damages

4. The Scope of Articles 81 and 82

5. The Ex Post Supervision by the Commission to Ensure that the Competitive Rules Were Respected

C. Conclusion

II. Possible Solutions

III. Conclusions

Chapter 2

DEREGULATION OF EC COMPETITION POLICY: RETHINKING ARTICLE 85(1)

by Christopher Bright

I. Introduction

II. Is The Scope of Article 85(1) Exorbitant?

A. The Commission's Approach to "Prevent, Restrict, Distort"

B. The Commission's Sense of Proportion

C. Community Interest and Article 85(1)

III. Why Are We Where We Are?

IV. What Problems Arise From the Commission's Approach?

V. Is There Hope?

A. The Court's Approach to "Prevent, Restrict, Distort"

B. The Commission Responses to the Problem

VI. What Solutions Are There?

VII. Conclusion

Chapter 3

THE LAICIZATION OF COMMUNITY LAW - SELF-HELP AND THE RULE OF REASON: HOW COMPETITION LAW IS AND COULD BE APPLIED

by lan S. Forrester/Christopher Norall

I. Introduction

II. The Early Choices

III. The Early Solutions and Subsequent Mitigations of Them

A. The Literal Interpretation of Article 85(1)

B. The Issuances of Notices and Group Exemptions

C. Offences Held Not To Be Sinful

D. Restrictions on Post-Sale Competition by the Seller of a Business

E. Selective Distribution Systems

F. Obligation of Licensee To Procure Components or Materials from Licensor

IV. The Actual Operation of the System Today

A. Notification

B. Complaints and Competition Law in National Courts

C. Compliance

D. Summary

V. A Rule of Self-Sufficiency (or of Reason) in Practice

VI. The Way Forward

A. The Interpretation of Article 85(1)

B. Exemptions Should Still Be Available

C. Community Law in National Courts

VII. Conclusion

VIII. Postscript

A. Comfort Letters

B. Recent Commission Decisions and Proposals

C. The Position of Community Law in National Courts

Chapter 4

MODERNISATION OF EC COMPETION LAW

by lan S. Forrester

I. Introduction

II. What Was the Problem?

III. Why Is Change Happening Now?

IV. The New Enforcement World

A. New Roles and Responsibilities

1. The Commission

a. Notices, Guidelines and Block Exemptions

b. Decisions

c. Notification

2. National Competition Authorities

3. National Courts

B. New Relationships

1. Coordination Between National Authorities

2. Cooperation Between the Commission and National Authorities

3. Coordination Between the Commission and National Courts

4. References for Preliminary Rulings

V. The Putative Reform: Vertical Restraints

VI. Human Rights and Extended Powers of Investigations

A. The Commission's Extended Investigation Powers

B. The European Court of Justice's and the Commission's Interpretation of the Commission's Investigation Powers

C. The So-called Duty of Active Cooperation

D. Effectiveness of the Investigation and the Protection of Human Rights

1. The Relationship Between the Convention and EU Law

2. Article 6 ECHR and the Commission's Extended Investigation Powers

3. Is the Commission a "Tribunal" for the Purposes of the ECHR?

4. The "Criminal Charge"

5. How the European Court Interpreted Ozturk

6. The Privilege Against Self-incrimination

7. Is There a Right to Silence in Competition Cases?

8. The Response of the Luxembourg Courts: No Infringements

9. Does the Procedure Before the Commission Comply With Article 6? Is the Commission an Independent and Impartial Tribunal?

10. Public Hearing

11. The Right to an Adversarial Trial

12. Fair Hearing by an Independent and Impartial Tribunal

13. Can the Possibility of Appeal to the European Courts Remedy a Breach of Article 6?

VII. Final Remarks

Chapter 5

EEC COMPETITION PRACTICE: A THIRTY-YEAR RETROSPECTIVE

by Donald L. Holley

I. Introduction

II. The Challenges of the Notification Process

III. Mixed Comfort From the Block Exemptions

IV. Looking for a Rule of Reason

V. Some Turning Points in Case Law that had an Impact on Practice

VI. Sources of Law and Precedents

VII. The Practitioner and the Commission

A. Interaction of Counsel with the Commission Staff

B. Procedure Before the Commission

VIII. The Role of Economics and of Economics

IX. EEC Competition Law in National Courts

X. The Merger Regulation

XI. Concluding Remarks

Chapter 6

ROUNDTABLE ON REFORM OF EC COMPETITION LAW

by

Frédéric Jenny

Jonathan Faull

Patrick Massey

Alberto Pera

Amadeo Pititbo Juan

Dieter Wolf

Panel Discussion

Chapter 7

THE COMMISSION'S WHITE PAPER ON MODERNISATION: THE NEED FOR PROCEDURAL HARMONISATION

by Stephen Kon

I. Jurisdiction

II. Disclosure/Discovery

III. Reliance on Public Documents

IV. Expert Reports

V. Legal Professional Privilege

VI. Standard of Proof

VII. Double Jeopardy

VIII. Costs

IX. National Competition Authorities

X. Conclusion

Chapter 8

EC COMPETITION SYSTEM: PROPOSALS FOR REFORM ROUNDTABLE

by

Jeremy Lever

Damian Collins

Frank Montag

Alexander Schaub

Giuseppe Tesauro

Michael Waelbroeck

Panel Discussion

Chapter 9

REFORM OF EC COMPETITION LAW: SUBSTANCE, PROCEDURE AND INSTITUTIONS

by Patrick Massey

I. Introduction

II. The Basic Philosophy Behind EU Competition Law

A. The Role of Competition Policy

B. Theoretical Foundations

C. The Equity/Efficiency Trade-Off

D. Competition Versus Market Integration

III. The Treaty Rules

A. The Basic Prohibitions

B. Regulating Abuse of Market Power

C. Vertical Restraints

D. Competition Law and High-Tech Industries

IV. Institutional Issues

A. EU Law and the National Authorities

B. The Proposal Independent Competition Office

V. Conclusion

Chapter 10

THE MODERNIZATION OF EC COMPETITION LAW: THE NEED FOR A COMMON COMPETITION CULTURE

by Erik Mohn Mersing

I. Introduciton

II. Main Characteristics of the Modernization Reform

A. "Concentrate of the Essentials"

1. Vertical Restraints

2. Self-governance

3. Decentralization

B. Development of a Common Competition Culture

III. The Need for a Common Competition Culture

IV. Means to Develop a Common Competition Culture

A. National Authorities' Application of EC Competition Law

B. National Authorities' Application of National Competition Law

C. Emphasis on "Concentrate-on-the-Essentials"

D. Division of Work Between the Commission and National Competition Authorities

E. Involvement of the National Courts

V. Conclusion

Chapter 11

THE CASE FOR A REFORM OF REGULATION 17/62: PROBLEMS AND POSSIBLE SOLUTIONS FROM A PRACTITIONER'S POINT OF VIEW

by Frank Montag

I. Introduction

II. The Need for Reform

A. Infringement Procedure

B. Notification Procedure

III. Proposals for Reform

A. Non-institutional Reforms

1. Infringement Procedure

a. Strengthening the Rights of Defense

b. Duration of the Proceedings

c. Restructuring within DGIV

2. Notification Procedure

a. Reducing the Notification Requirements

b. Fixed Timetable for Decisions

c. Decentralization

d. Extending the Powers of the Competition Commissioner

e. Administrative Fees for Exemption Decisions

f. Strengthening the Position of the Parties' Representatives

B. Institutional Reforms

1. The Creation of an Independent European Cartel Office

2. Infringement Decision by the Court of First Instance

IV. Outlook and Perspectives

Chapter 12

EUROPEAN COMPETITION FOR THE 21st CENTURY

by Mario Monti

I. Competition Policy in an Integrating Continental Economy

A. Integration and Competition: The Challenges

B. Modernising the Tools

II. The New Economy and Competition: Monitoring a Potential Ally

III. Competition Authorities and the Governance of Globisation

A. Bilateral Cooperation

B. Multilateral Cooperation

Chapter 13

ENFORCEMENT OF EC COMPETITION RULES: NEED FOR A REFORM?

by Alberto Pera Mario Todino

I. Introduction

II. The Shaping of EC Competition Policy

III. The Shift in EC Competition Law and Policy

A. A Success Story: Enforcement of Article 86

B. Enforcement of Article 85: Evolution Towards a More Pragmatic Approach

IV. Rethinking the Decisionmaking Process

V. Conclusion

Chapter 14

EC COMPETITION LAW - THE MILLENNIUM APPROACHES

by Alexander Schaub

I. Introduction

II. Present Role of Competition Policy in Europe

III. The Time Has Come for Re-examination and Modernisation of Rules

A. Fundamental Change in Our Environment

1. Globalisation/Liberalisation of World Trade/Trend Towards Concentration

2. Technological Change and the Information Society

3. Single Market

a. Single Market

b. Liberalisation

c. Countervailing Tendencies

4. EMU

5. Accession of New Member States

B. Experience of the Past and New Legal Developments

1. EC Past Experience

2. New Legal Developments Inside and Outside the Community

a. Member States

b. Outside the Community

C. Third Reason for Reform: Mass Problem of Increasing Workload

D. How to Proceed

IV. Priority Areas of Reform

A. Not so much: Merger Control and Article 90

B. More Particularly: Article 85 and State Aid Control

V. Objectives of Reform

A. Three Major Directions

B. Some Illustrative Examples of Projects Under Way

1. Update Existing Rules

a. Relevant Market Definition

b. Vertical/Horizontal Restrictions

2. Concentrate on Core Issues to Allow a More Pro-Active Policy

a. De Minimis

b. Critical Assessment of Community Interest

c. State Aid Group Exemption

3. Decentralise Without Jeopardising Coherence

a. EC vs. National Law: Application of Community Law by National Authorities

b. Further Steps for Article 85(3)

c. Strengthened Cooperation Between the Commission and National Authorities

VI. An Important Additional Dimension: Reinforce International Cooperation

A. Logical Consequence of Globalization

B. Conceptional Approach: The van Miert Report

C. Bilateral Perspectives

1. The EU-U.S. Case

a. Very Favourable, Working Relationship

b. Outlook

2. Future Member States in Central and Eastern Europe

D. Multilateral Perspectives

1. The OECD

2. The WTO

VII. Final Remarks

Chapter 15

EC COMPETITION SYSTEM: PROPOSALS FOR REFORM

by Alexander Schaub

I. Introduction

II. The Basic Orientation of Our Reform Efforts

A. Our First Basic Orientation: The Commission Has to Concentrate on the Essentials

1. What Are the Essentials?

2. How Can the Commission Better Concentrate on These Essentials?

B. Our Second Basic Orientation: The Reformed System Must Ensure More Efficient Enforcement

C. Our Third Basic Orientation: The Reformed System Must Guarantee a Coherent Application of the Rules and a Reasonable Level of Legal Certainty for the Benefit of Economic Operators

III. The Application of These Basic Orientations of Reform in Different Areas of EC Competition Law

A. State Aid

1. The Objectives and the Projects

2. The Instrument of Regulations Based on Article 94 of the EC Treaty

3. Group Exemptions for State Aid

a. The Mass Problem

b. Decentralization

c. Limited Shift to a Posteriori Control

d. De minimis rule

4. The Regulation on State Aid Procedures

B. Merger Control

1. The Amendment of the Merger Regulation of March 1, 1998

2. Referrals by the Commission to a National Competition Authority

3. Possible Reforms in the Long Run

C. International Cooperation

1. The Bilateral EU-U.S. Relationship

2. The Multilateral Perspective

3. The Relationship Between the European Union and Its Future Member States in Central and Eastern Europe

IV. The Most Sensitive Reform: The Enforcement of Articles 85 and 86

A. Ongoing Reforms

1. Vertical Restraints

a. Substance

b. Implementation

2. Horizontal Restraints

B. The Orientation of Further Reforms

C. Increased Decentralization in the Application of EC Competition Law and Closer Cooperation Between the Commission and National Competition Authorities/Courts

1. National Authorities' Power to Apply Articles 85(1) and 86

2. One Single Set of Substantive Rules for Cases with Effect on Interstate Trade, i.e. the EC Competition Rules

3. Instruments to Ensure Coherence in the Application of the EC Competition Rules

D. The Central Open Question: Modernisation of Regulation 17

1. The Remaining Problems

a. The Commission Works Far Too Reactively

b. The Current System of Regulation 17 Is Becoming Inappropriate

2. What Are Possible Solutions?

a. "Rule of Reason" Approach in Interpreting Article 85(1)

b. Simplification of Procedures

c. Power to Exempt also for National Cartel Authorities

d. Other Solutions

V. Conclusion

Chapter 16

MODERNISATION OF EC COMPETITION LAW

by Alexander Schaub

I. Introduction

II. Why Do We Need a Reform of Regulation No. 17?

III. Options for Reform of Regulation No. 17

A. The First Option

B. A Second Model

C. The New System Proposed by the Commission's White Paper

IV. Details of the Commission's Reform Model

A. Our Proposal is Based on Four Pillars

B. The Competence of Commission, National Competition Authorities and National Courts in the New System

1. The Commission

2. National Competition Authorities

3. National Courts

4. Case Allocation in the New System

V. Advantages of the New System for Industry

VI. Criticism Expressed Against the New System

A. Compatibility of the Commission's Reform Model With the EC Treaty

B. Effectiveness of Competition Protection

C. Uniform and Coherent Application of EC Law

D. An Adequate Level of Legal Certainty

VII. Conclusion

Chapter 17

A CRITICAL REVIEW OF THE WHITE PAPER ON THE REFORM OF THE EC COMPETITION LAW ENFORCEMENT RULES

by Mario Siragusa

I. Executive Summary

II. Introduction and Background

A. The Current Notification System and Its Shortcomings

B. The Commission's Reform Package

III. Discussion of the Commission's Proposal

A. Ending the Authorization System is a Positive Step and Is Permitted by the Treaty

B. The Commission's Proposal Reduces Legal Certainty

C. Inconsistent Application of Community Law

IV. Proposal for a Revised System

A. Outline of the System

B. Effects of the Proposed System

V. The Complementary Reforms Proposed by the Commission

A. Increased Investigative Powers for the Commission

1. The Commission's Proposals for Oral Questioning of Company Officials are Disproportionate and Unnecessary

2. Centralization of Authorization for Dawn Raids Would Require a Treaty Amendment

B. Recognition of In-House Counsel Legal Privilege

Chapter 18

RETHINKING ARTICLE 85: PROBLEMS AND CHALLENGES IN THE DESIGN AND ENFORCEMENT OF THE EC COMPETION RULES

by Mario Siragusa

I. Introduction

II. Current Interpretation of Article 85

A. The Commission's Approach

B. Reasons for the Current Approach

1. Initial Unfamiliarity with Competitive Rules

2. Completion of the Single Market

3. The Difficulty of Making a Market Analysis in Individual Cases

III. Criticisms of the Commission's Approach

A. Excessive Compliance Burden

B. Discouragement of Commercial Innovation

C. Huge Commission Workload

D. Failure of the Commission's Attempt to Reduce its Workload

1. Loss of Flexibility Through Group Exemption Regulations

2. Lack of Legal Certainty Through Comfort Letters

3. Limited Enforcement Powers of National Courts

IV. The Rule of Reason and Procedural Improvements

A. Rule of Reason Approach

B. The Residual Role of the Exemption Process Under Article 85(3)

C. Advantage of the Proposal System

D. The Adoption of a "Rule of Reason" Approach by the Italian Antitrust Authority

E. Procedural Improvements

1. Guidelines and Notices

2. Block Negative Clearances

3. Improved Cooperation Between the Commission and National and International Courts and Authorities in the Enforcement of Competition Rules

4. Further Development of Informal Settlement of Cases

V. Conclusion: Practical Applications of the Rule of Reason Approach

A. Rule of Reason Applied to Interpret Context of Agreement

B. Rule of Reason Applied to Interpret Terms of Contract

Chapter 19

THE MODERNISATION OF THE ENFORCEMENT OF ARTICLES 81 AND 82 EC: A LEGAL AND ECONOMIC ANALYSIS OF THE COMMISION'S PROPOSAL FOR A NEW COUNCIL REGULATION REPLACING REGULATION NO. 17

by Wouter P.J. Willis

I. Introduction

A. The Provisions of the EC Treaty

B. Regulation No. 17

C. Main Difference Between the Proposed New Regulation and Regulation No. 17

D. Fundamental Dimensions of Law Enforcement-Outline of This Paper

II. The Timing of Legal Intervention: Ex Ante Enforcement Through Prescreening or Ex Post Enforcement Through Deterrence?

A. The Two Alternatives and the Current Situation

1. Two Methods of Enforcement

2. The Current Situation

a. Merger Control

b. Article 82

c. Article 81

B. Which Enforcement Methods is Best Suited?

1. Criteria For Choosing Between the Two Enforcement Methods

2. First Factor: Credibility of Deterrence

a. Application to Merger Control

b. Application to Articles 81 and 82

3. Second Factor: Relative Knowledge and Predictability of the Substantive Rule

a. Errors

b. Uncertainty and Risk-Bearing Cost

c. Summing Up On the Second Factor

d. Application to Merger Control

e. Application to Articles 81 and 82

4. Third Factor: Enforcement Costs

a. Application to Merger Control

b. Application to Articles 81 and 82

5. Fourth Factor: Specific Problems with Voluntary Prescreening Adverse Selection and Distortion of Enforcement Priorities

a. Application to Merger Control

b. Application to Articles 81 and 82

6. Conclusion as to Articles 81 and 82

C. The Proposed New Regulation

1. A Clear Choice for Ex Post Enforcement

2. Block Exemptions

3. Guidelines and Notices

4. Non-infringement Decisions

5. Reasoned Opinions

6. Register of Restrictive Agreements

III. The Respective Roles of the Commission and the Competition Authorities of the Member States

A. What the Proposed New Regulation Does Not Do, and What it Does

1. No Sharing of the Exemption Monopoly

2. Multiple Ex Post Enforcement

B. Why Should National Authorities Prosecute Violations of Articles 81 and 82?

C. Criteria for Allocating Cases

D. Possible Problems with Multiple Ex Post Enforcement

1. Duplication

2. Conflicting Decisions

3. National Bias

4. Forum Shopping

IV. The Role of Private Complainants and National Courts

A. The Role of Private Complainants in Public Enforcement

B. Private Enforcement and the Role of National Courts: What the Proposed New Regulation Will Not Change, and What It Will Change

1. Impact on Private Enforcement and on Contractual Litigation

2. Agreements Which Fulfill the Conditions of Article 81(3) Will No Longer Be Void

3. National Courts Will Be Able to Apply the Four Conditions of Article 81(3) Themselves

4. No Declaratory Judgments

C. Possible Problems with the Application of Article 81(3) by National Courts

1. Complex Economic Assessments

2. Forum Shopping

3. Inconsistent Judgments

V. Sanctions

A. Fines

1. Only Pecuniary Sanctions Imposed on Undertakings

2. The Criminal Law Nature of Fines

3. The Maximum Amount of Fines

4. Publication of Fining Decisions

B. Remedies

1. Termination Orders

2. Consent Decisions

VI. Conclusion

Chapter 20

COMMENT ON THE WHITE PAPER ON THE REFORM OF EC COMPETION LAW

by Dieter Wolf