European Competition Law And Regulation 2014/2015

EUROPEAN UNION COMPETITION LAW AND REGULATION

Syllabus, Readings, Cases and Materials

MARTINA CONTICELLI

Office hours: before after classes/or on Monday upon request by email

martina.conticelli@uniroma2.it

M. Sc. in EUROPEAN ECONOMY AND BUSINESS LAW – A.Y. 2015/2016

The course

The objective of the course is to provide students with an in-depth and up-to-date knowledge of EU Competition Law and Regulation.

The substantive law (Article 101, Article 102, Article 106, Articles 107 – 109 of the TFEU and the Merger Regulation) in the light of the judgements of the Court of Justice of the European Union will be analysed. The relationship with regulation, even more complex due to the economic and financial crisis, will be discussed.

A distinction will be drawn between the rules addressed to private firms and the rules addressed to Member States, as interconnected instruments for ensuring an equal level playing field for undertakings. In the first part, the course will examine the provisions of EU competition law which apply to undertakings, regarding agreements and concerted practices, abuse of dominant position and mergers; close attention will be devoted to procedure and enforcement.The interplay between competition law and intellectual property law will also be analysed.Subsequently, the duties of the Member States in ensuring competition in the market will be discussed through the examination of the EU rules applicable to public undertakings, services of general economic interest and State aids.

Method

The aim of the course is to provide students not only an understanding of this area of law, but also to raise their ability to subject it to critical legal and economic analysis. Lectures will be carried out with the active participation of students, which will be required to prepare each class in advance: documents (legislation, judgements, doctrine etc.) will be made available through the University website.

Assessment

Final exam: both written and oral

                                                                                                                             Martina Conticelli

Rome, September 2015

Textbooks (for consultation)

Monti G., Ec Competition Law, Cambridge, 2007

Whish R., Bailey D., Competition law, Oxford, 2012

Recommended

Chalmers D., Davies G., Monti G., European Union Law, Cases and materials, Cambridge, 2010, p. 908-1051

Chalmers D., Davies G., Monti G., European Union Law, text and materials Cambridge, 2014, p. 942-1087

Craig P., De Burca, EU Law: text and materials, Oxford University Press, 2011, p. 959-113

SYLLABUS

(Cases and readings followed by* are not compulsory).

PART I  - Introduction

Lecture 1

Competition and regulation: where does the dichotomy come from

The foundations of EU competition law: the three instruments for the common market

The evolution of EU competition law and policy

The need for regulation

The result: Deutsche Telekom

PART II – Substantive rules

Lecture 2

Market definition

Market definition

Product market - Case 27/76, United Brands

Geographical market

Supply substitutability – Case 6/72 Continental Can vs. Commission

Commission notice on the definition of relevant Market for the purposes of Community competition law

Case study

Case 27/76, United Brands

Case 6/72 Continental Can vs. Commission

Relevant legislation

Lecture 3

Restrictive practices

Art. 101 TUE

Case C-73/95- Viho Europe vs. Commission

Case C-519/04 Meca Medina

Vertical agreements Joined Cases 54 and 58/64 Consten and Grundig vs Commission

Case C-49/92 –Commission vs Anic Partecipazioni Spa*

Case C-3/01 – Commission vs Bayer*

Lecture 4

Abuse of dominant position

Art. 102 TUE

Specific abuses:

Non-pricing practices

Refusal to supply (cases 6/73 and 7/73, Commercial Solvents; C-7/97 Oscar Bronner; C-53/03 Syfait*)

Refusal to licence intellectual property rights (T- 167/08 Microsoft; C-241/91 and 242/91, Magill*; C-418/01, IMS*; T-201/04 Microsoft*)

Tying (Microsoft)

Lecture 5

Abuse of dominant position II

Pricing practices

Exploitative pricing (case 27/76, United Brands)

Rebates: loyalty, quantity and target rebates (T- 219/99, on appeal C-95/04, British Airways*)

Predatory pricing (C-62/86, AKZO; T-340/03, Wanadoo*, T340/03 France Telecom vs Commission)

Guidance on the Commission’s enforcement priorities in applying Article 82 (EC) to abusive exclusionary conduct by dominant undertakings

Lecture 6

Mergers

Horizontal and vertical mergers

Community control of concentrations between undertakings

Regulation 139/2004

Relevant case-law:

T-102/96, Gencor (collective dominant position);

T-342/99, Airtours/First Choice; (non-collusive oligopoly);

T-5/02, on appeal C-12/03, Tetra Laval (conglomerate mergers);

T-210/01, GE/Honeywell (vertical mergers and exclusionary effects).

PART III – Procedure and competences

Lecture 7

Procedural profiles

Enforcement of EU competition law

Public enforcement -Regulation 1/2003 -The “Modernisation package”

Private enforcement - cases C-453/99,  Courage vs. Crehan; C- 295/04 to C-298/04, Manfredi

White Paper on Damages Actions for Breach of the EC antitrust rules –  COM (2008) 165

On competences between National authorities and the Commission

On the European competition network

On competences between National courts and the ECJ

Materials

Commission Notice on cooperation within the Network of Competition Authorities

(2004/C 101/03)

PART IV - State Aids

Lecture 8

State aids

(art. 107 TFEU)

The objective of State aid control

State aid in the form of public service compensation

Cases: State aids-Austria

The legal framework:

rules on procedure: notification (Reg. 659/99 and Commission Regulation 794/2004) and recovery (Commission notice of 25.10.2007);

de minimis aids: Commission Regulation 1998/2006;

block exemption regulations: small and medium enterprises (Commission Regulation 70/2001)*; training aid (Commission Regulation 68/2001)*; employment aid (Commission Regulation 2204/2002)*;

horizontal rules: Community Guidelines on regional aid, research and development and innovation aid, environmental aid, rescue and restructuring aid*;

sector-specific legislation: ex. cinematographic and other audiovisual works, postal services, shipbuilding*

State aids in times of crisis

State aid action plan 2005-2009 (COM (2005) 107)*

Temporary framework for State aid measures to support access to finance in the current financial and economic crisis (Commission communications of 17.12.2008 and 15.12.2009)*

Commission  2009 C 83/01

Commission 2011 C 386/02

PART V – Sectors regulation

Lecture 9

The origin

Article 106 TFEU

Infringement of Article 102 in conjunction with Article 106(1):

-              case C-320/91, Corbeau

Sectors

Lecture 10

A focus on

The liberalization rules for the EU electronic communications and railways

Directive 91/440

Directive 2009/136/EC and Directive 2009/140/EC

PART VI – The evolution

Lecture 11

The interplay between competition and regulation

Two different conception of Antitrust law and policy

A comparative approach: Deutsche Telekom and Trinko

Case study

Europe: Case T271/03

USA: Supreme Court of the United States Verizon-Trinko*

Lecture 12

Competition and regulation: open issues

The global dimension of European competition law- General electric vs. Honeywell; Basf Ag and Ucb Sa vs. Commission*

Case study

Commission Decision 2004/134/EC 3 July 2001

Case T-209/01

Us Antitrust Division

Materials

ICN-operational framework

The need for regulation at a global level – Financial crisis

Impact of the financial crisis on the enforcement of competition policy

textbooks and reading materials:

In addition to materials included in the syllabus, students have to choose between:

a) textbook plus one reading

b) readings indicated below

Options a) and b) are alternative.

Option a)

Chalmers D., Davies G., Monti G., European Union Law, Cases and materials, Cambridge, 2010, p. 908-1051

Chalmers D., Davies G., Monti G., European Union Law, text and materials Cambridge, 2014, p. 942-1087

Craig P., De Burca, EU Law: text and materials, Oxford University Press, 2011, p. 959-113

Option b)

Choose two readings from each paragraph. Read also the papers under introduction and competition in times of crisis

Introduction                                                                                                                    

Damien Geradin, Anne Layne-Farrar, Nicolas Petit,  EU Competition Law and Economics, Oxford university Press, 2012, Introduction

Article 101 TFEU (ex art. 81 EC Treaty)

Motta Massimo, On cartel deterrence and fines in the European Union, European Competition Law Review 2008, v. 29, n. 4, pp. 209-220

Sandhu Jatinder S., The European Commission’s leniency policy: a success?, European Competition Law Review 2007, v. 28, n. 3, March, pp. 148-157

Walsh Declan J., Carrots and sticks : leniency and fines in EC cartel cases, European Competition Law Review 2009, v. 30, n. 1, p. 30-35

Article 102 TFEU (ex art. 82 EC Treaty)

Apon Jochem, Cases against Microsoft : similar cases, different remedies, European Competition Law Review 2007, v. 28, n. 6, June, pp. 327-336

Howarth David, McMahon Kathryn, “Windows has performed an illegal operation”: the Court of First Instance’s judgment in “Microsoft v Commission”, European Competition Law Review 2008, v. 29, n. 2, pp. 117-134

Kellerbauer Manuel, The Commission’s new enforcement priorities in applying Article 82 EC to dominant companies’ exclusionary conduct : a shift towards a more economic approach?, European Competition Law Review 2010, v. 31, n. 5, p. 175-186

Motta Massimo, The European Commission’s guidance communication on article 82, European Competition Law Review 2009, v. 30, n. 12, p. 593-599

Niels Gunnar, Jenkins Helen, Reform of Article 82: Where the link between dominance and effects breaks down, European Competition Law Review 2005, v. 26, n. 11, pp. 605-610

Enforcement

Gerber David and Cassinis Paolo, The “Modernisation” of European Community Competition Law: Achieving Consistency in Enforcement, Part I, European Competition Law Review 2006, v. 27, n. 1, pp. 10-18

Gerber David and Cassinis Paolo, The “Modernisation” of European Community Competition Law: Achieving Consistency in Enforcement, Part II, European Competition Law Review 2006, v. 27, n. 2, pp. 51-57

Merger control

Baxter Simon, Dethmers Frances, Collective dominance under EC merger control: after Airtours and the introduction of unilateral effects is there still a future for collective dominance?, European Competition Law Review 2006, v. 27, n. 3, pp. 148-160

Killick James, The GE/Honeywell judgment: in reality another merger defeat for the Commission, European Competition Law Review 2007, v. 28, n. 1, pp. 52-62

Whish Richard, Reform of the EC Merger Regulation, paper 2004.

State aids

Berghofer Michael, The new de minimis regulation: enlarging the sword of Damocles?, European state aid law quarterly 2007, v. 6, n. 1, pp. 11-23

Braun Jens-Daniel, Kühling Jürgen, Article 87 EC and the Community courts: From revolution to evolution, Common Market Law Review 2008, v. 45, pp. 465-498

Competition v. Regulation

G. Monti, Managing the Intersection of Utilities Regulation and EC Competition Law, I LSE working papers, 2008

De Smet Dieter, The diametrically opposed principles of US and EU antitrust policy, European Competition Law Review 2008, v. 29, n. 6, pp. 356-362

D. Geradin, Limiting the scope of article 82 of the treaty. What can the Eu learn…?

Alexandre de Streel, The Relationship between Competition Law and Sector Specific Regulation: The case of electronic communications, 2008

Competition in times of crisis

Lowe P., Competition Policy and the Global Economic Crisis, in CPI, 2009.