EU Competition law 反垄断法
2021-10-07 17:11:06 1 举报AI智能生成
课堂笔记
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大纲/内容
Rule
Probihition against anti-competitive agreements
垄断协议
垄断协议
1 public regulation
of public regulation
direct or necessary consequence
2 Agreement, concerted practice
Agreement
two or more hae expressed a common intention to act in a particular way on the market
Expressed intetion
not limited to legally binding agreement
Oral or in writing
Not purely one-sided behavior
Concerted practices 协同行为
connection
eg. meeting
eg telecom companies meet, one is to reduce dealer fees, not affect market behaviour?
Common willingness or consensus to
cooperate rather than compete (the connection
eliminates or significantly reduces uncertainty
about future behavior)
cooperate rather than compete (the connection
eliminates or significantly reduces uncertainty
about future behavior)
eg. future strategy, price increasing
Subsequent market behavior (reversed burden
of proof)
of proof)
Defense
share to the MARKET, not the competitor
Examples
Agreement or concerted practice?
recommended retail price
sign the agreement, sell at the recommended retail price
sign agreement, sells at its own prices
wirte Binding resale price on invoices,
dealer pays the invoices without protest
protest, and sells at own price - public distancing
3 between independent undertakings
two or more undertakings, supply goods or services
Economic activities regardless legal status
exceptions
internal agreement or employee
consumer is not an economic entity- not reselling but for its own use
4 anti-competitive: illegal to object or effect to restrict competition
object
nature to harm competition
Cartel agreement to divde market by two+ competitors even it's 0.1% marketshare
Passive sales not allowed in agreement
Resale price maintenance
eg, obide recommended retail price
effect
negetively effected with agreement, worse than no agreement - price /innovation
analysis the effect on central parameters of competition
analysis the effect on central parameters of competition
eg: Recomend retail price, no abide agreement
eg: distributor says to obide the receommendations
eg: distributor says nothing, but just follow the recomendation,
over 30% anti-competitive
below 30% OK
5 Quantitative/qualitative restrictive
yes
Object
no
below 10% - horizontal agreement(between competitors)
15% - vertical agreement (between non-competitors)
Qualitative
affect competition
6 Efficient defence / Indiviual exemption
1.promote technical or economic progress
new products or higher quality
2 benefit consumers
3 indispensable
4 no afford to eliminate competition - sufficient competition left
7 Block exemption集体豁免
block exemptions only in EU
ok in distribution agreement if no price maintainance, not restrict sales(passive)
Defense
Distanceing
Red wine rule on your face
Red wine rule on your face
Quickly
Clearly unambiguously
without disclosure of future strategy info
Evidence that sebsequent behavior is determined independtly
Eg: tender: know the competitior quotatoin, get another salesperson from scratch
Conclusion
a
2 Prohabition against abuse of dominance
滥用市场支配地位
滥用市场支配地位
1 public regulation
2 undertaking
One
3 dominant postition
market share
>50% dominant
=25-40?
strong indicator not dominant,
eg: British airway dominant - below 30%
less 25, not dominant
joint/collective dominant by 2+ companies
act by same behavior but no agreement
barries to enter and expansion
countervailying buyer power
Temporal scope
4 Abuse
Concept： dominant undertaking, influence the structure of the market, weaken the competition, not normal competition
harms consumers/competitor - damage competition
- can be exclusionary or exploitative 排他性、剥削
strategy to eliminate a competitor
Eg: low price than production
Too high prices (excessive pricing)
Too low prices (predatory pricing)/欺负弱小压榨
Margin squeeze
Discrimination
Selective pricing
Exclusivity
Rebates and bonuses
Refusal to supply
Tying/Bundling
Too short notice periods
Vexatious litigation
Denegration
Payment for services not provided
Terms of payment, warranties, etc.
Termination notices
Too short notices
Enforcement of rights
English clause
Requirement to use original parts to maintain warranty
5,6,7 defence
Efficiency def
improving the production/distribution/ to promote technical or economic progress
cost saving-quantitative
new products or higher quality-qualitative
consumer benefit
not indispensable
no chance to eliminating effective competition
meeting competitor price to own regular customer
objectively necessary
eg: banana, sell at low price or dump them
SSNIP Price 5-10%
profitable for one year
Market one, swtich two market two, The MARKET will be 1 + 2
eg chair company
Switch production
Conclusion
Conclusion
Market
Definition: what will customer/other company do?
product
Relevant product market
[A]ll those products and/or services which are
regarded as interchangeable or substitutable by
the consumer, by reason of the products'
characteristics, their prices and their intended
use (para 7)
Supply-side substitution:
[S]uppliers are able to switch production to the
relevant products and market them in the short
term without incurring significant additional
costs or risks in response to small and
permanent changes in relative prices.
Demand-side substitution:
[W]hether the parties' customers would switch
to suppliers located elsewhere in response to
a hypothetical small (in the range 5 % to 10 %)
but permanent relative price increase in the
products and areas being considered 17)
geographical
Relevant geographical market
[T]he area in which the undertakings
concerned are involved in the supply and
demand of products or services, in which the
conditions of competition are sufficiently
homogeneous and which can be distinguished
from neighbouring areas because the
conditions of competition are appreciably
different in those area (para 8)
[T]he area in which the undertakings
concerned are involved in the supply and
demand of products or services, in which the
conditions of competition are sufficiently
homogeneous and which can be distinguished
from neighbouring areas because the
conditions of competition are appreciably
different in those area (para 8)
Demand-side substitution:
[W]hether the parties' customers would switch
to readily available substitutes in response
to a hypothetical small (in the range 5 % to 10
%) but permanent relative price increase in the
products and areas being considered
Supply-side substitution:
[S]uppliers are able to switch production to the
relevant products and market them in the short
term without incurring significant additional
costs or risks in response to small and
permanent changes in relative prices.
eg: M&A acqusition?
eg: Paper company
type a paper, switch to type B paper entering to B market = A+B market
lost cost + risk free
Costly or risky to enter, not the same market
+5-10% price increase, profitable(within 1 year)? will customer switch? will other company enter?
eg
if you are Dominant, look at narrow market
电力公司
if it's a competitor, look at broad markets
eg: Potential market share, eg: Office chair market, entering by a Kitchen chair company , market share will be both Office+kitchen
Competitor
Actual
active on the Same relevant market
geographical market
Supply-side
Switch productoin
market new products 1 year
no significant addional cost or risks
Potential
不论你是否想进入新市场，只基于你的条件判定是否是潜在competitor，即使你不想加入
sub-contractor
if using a subcontractor to
provide a service, the company is a competitor of
other service providers
provide a service, the company is a competitor of
other service providers
objective assesment
Sanctions
anti-competitive clauses - null & void automatically
Fines to 10% worldwide group turnover
Google $4billion exclusivity
Negative press coverage
Leniency从宽处理
Cartel agreement worldwide
ask for leniency in many countries
not everycountry has leniency, sweden for maintainance of resale price
Pricing of products & service
too high?
not dominant
OK
not for punish
Dominant - abuse if charing price ...exceeed
Significant difference between production cost & sales price
higher than what market normally is? 除非有高收费的原因
借口 - 因为客户想付高价，产品好，
如果价格太高，会有竞争者进入市场
合理原因？港口地理位置原因地段贵
eg: 香蕉公司收费7%高，因为在其它地区亏损了，需调查原因
比价的时候，需要对比同类的对比，不能比无法比的价格，如list price，不是实际销售价格
price is unfair in itself / compared to competing proucts
eg 某药企？提高价格20倍，后有新公司进入，竞标中价格极低，利用支配地位提价是abuse
eg 供电公司只有一家-consumer cant switch to other supplier
too low
not dominant
OK
not for reward
dominant
abuse if lead to a loss
Abuse if selling at average variable cost
eg: 椅子的固定材料费，随数量增加
1
Not abuse if at over average total cost
AVC + fix cost 如人工
abuse if between AVC & ATC, intent to eliminate a competitor
diff price dif customer
not D
ok
no for punishing/reward
dominant
Abuse if discriminating between customers placing them
at a competitive disadvantage
at a competitive disadvantage
1.dissimilar condition for same transaction,
all facts including negotiation power
2. place them into competitive disadvantage
eg.
euro 31 vs 28 from a boiler, neotiation for four days vs 1 day. it may not provide competetive advantage since 3 euro difference for a boiler
stragic customer with same volume different price- one company is marketing to entering to a market vs the other one with no marketing activities
谁得到最高回扣，我们本地的航空
eg 邮局对在城市和周边地区收取不同费用
eg
Abuse only based on nationality
selective price cut
Strategy not abuse
eg: target one competitor's key customers to drive the competitor out of the market, not all customers/all competitors
Internal vs external
abuse if treat Internal better than external, eg: too low to subsidary vs high external
Dominant in the upstream market
Margin squeeze
restrict competition
eg: limited stock, need to give reasonable notice for finding alternative supplier
Rebates + bonus=ilegal
Not dominant
ok
Dominant
1 ok - functional discounts, stay above the production cost , not discrimination
eg, discount for customer advertising our product
2 OK - Quantity discount
individual vs not total purchase (future purchase)
根据一次性数量给与折扣，OK，但需cover cost
根据某段时间的量或未来的购买量给折扣，不可以
eg
3 Exclusivity discounts
Abuse
4. others discounts
Retroactive, anti-competitive
达到一定数量，所有都享有折扣
Incremental rebate
达到一定数量，只有到达的才享有折扣
mixed bundling
issues for different type of products bundling
conclusion
Bundling products
Dominant
customers required to purchase products together
lead to anti-competitive foreclosure, to kick the competitor out of the market
如对手不能提供捆绑两产品，要分析折扣，是否高于两者任何一个production cost
not dominant
小于30% ok
block exempt
30以上 but not dominant , anti-competitve
lead to foreclosure
price increase
Restrictions when we buy?
not dominant
OK
domiance? not relevant
abuse if buying with a loss, or disciminating competiting supplier
Distribution of products
产品分销
产品分销
Overview of typical restrictions
Restricting sales to end-users
Restricting sales to other distributors
03. Restricting to/purchases from other distributors to/purchases from other distributors within the system
outside the system
06. Non-compete clause (exclusivity)
07. Price restrictions
wholesaler to end user
09. Information exchange
Legal framework
price
Purchase prices: Normally legal
Object infringement
Binding resale prices:
Minimum resale prices
normally legal, but may effect assesment
Recommended resale prices:
Maximum prices:
exclusivity (non-compete clause)
sales restrictions
object
Passive
internet sales
object or effects restriction
active sales
Exceptions
Re-export ban on the supply of
products outside the EU to penetrate
products outside the EU to penetrate
Sale by wholesale to end-users
Active sale in exclusive distribution
area if necessary for penetration
area if necessary for penetration
Sale to unauthorized members in
selective distribution
selective distribution
Distribution model
Traditional
sales to retailer without restrictions
object
Passive
internet sales
object or effects restriction
active sales
Exception
Re-export ban on the supply of
products outside the EU to penetrate
products outside the EU to penetrate
Sale by wholesale to end-users
Sole
Definition: Sales to a dealer who is the only one
allowed to make active sales in that area and/or
customer group
object
Passive
internet sales
object or effects restriction
active sales
Exception
Re-export ban on the supply of
products outside the EU to penetrate
products outside the EU to penetrate
Sale by wholesale to end-users
Active sale in exclusive distribution
area if necessary for penetration (case
area if necessary for penetration (case
Selective
Definition: Restriction of sales to authorized dealers, selected on the
basis of pre-determined criteria
Vertical block exemption regulation
Vertical agreement restrictions
Price
Binding resale prices/min resale prices
禁止限定最低价或某特定价
禁止限定最低价或某特定价
建议转售价或最高价，不一定object infringement，但可能effect infringement
non-compete clauses
竞业禁止条款-排他性
竞业禁止条款-排他性
依个案具体分析
Dominant company CAN'T
Sales (EU, China, Russa, USA)
Passive sales-object
doesnt nothing by supplier
active sales restriction - object or effects
EU allow active sales restriction
eg, allow to prevent wholesaler to end-user
avoid distribution active sales if one distributor for one area or for one particular customer group
avoid distribution active sales if one distributor for one area or for one particular customer group
Distribution model
Traditional?
Sole distribution
Selective
Distribution agreement or concerted practice
Between two or more undertakings
operates, for the purposes of the agreement or the concerted practice, at a different level of the production or distribution chain
Draft vertical block exemption regulation
Selecting the right distribution system
Can we refuse to supply products/services to customers?
Can a customer decide which Grundfos company to conduct business with?
Can we restrict cross-border warranty claims
Information exchange
With competitors (both are manufacturers or both are distributors)
With non-competitors
With competitors (one is manufacturer and distributor; other only distributor)
With an employee who switched from a competitor
If a mistake has been made
partnership agreement
Grundfos competes with the partner at the manufacturing level
Grundfos competes with the partner at the distribution level
职业：legal counsel
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