Chapter 13 Suggested approaches to end-of-chapter questions

An introduction to EU competition policy and law

1. Why is competition law an integral and necessary part of the EU legal regime?

The EU needed an integrated competition policy to complement and to ensure the maintenance of the internal market––the whole establishment or foundation of the EU is premised on the desire to promote integration and create a single unified market. A competition policy within the overall treaty regime prevents companies from setting up their own rules and obstacles to trade to replace the national rules and obstacles the EU is trying to abolish. It was stated by the Court of Justice in Joined Cases 56 & 58/64 Consten and Grundig that the desire on the part of the Community to remove barriers to trade and create a common market would not allow undertakings to restore national divisions or re-construct barriers to trade.

2. Art 101(1) prohibits certain anti-competitive agreements: what conditions must be satisfied for the prohibition to apply?

There must be an agreement between undertakings, or a decision by an association of undertakings or a concerted practice, [an arrangement between undertakings], which may affect trade between Member States, and which must have as its object or effect the prevention, restriction or distortion of competition within the common market.

3. On what grounds or reason may agreements etc, escape falling foul of Art 101 TFEU?

If the agreement or action comes within the definition or coverage of any of the following: Individual exemptions, Block exemptions or the De Minimis doctrine.

4. What conditions have to be satisfied for an undertaking to be in breach of Art 102?

Article 102 contains three essential elements. There must be: an undertaking (or undertakings) in a “dominant position”; an “abuse” of that ‘dominant position’ by the undertaking; and the abuse must have the potential to “affect trade between Member States“

5. What were the main reasons for the change in the enforcement regime in EU competition law and the enactment of Regulation 2003/1?

The previous system before reform resulted in the Commission being inundated with work … much of its resources had been used in investigating and dealing with many arrangements which did not pose any significant threat to cross-border competition and therefore the effectiveness of the ‘market’. As a result of taking up vast amounts of time and money - the system resulted in the Commission not being able to concentrate on the bigger - widespread anti-competitive behaviour within the EU. Much more power has been provided to the National Competition Authorities (NCAs) of each MS - and on the national courts, which now have the responsibility for being the prime enforcers of EU competition law. The EU Commission retains over-riding powers and the role of concentrating on investigating major cross-border anti-competitive activities and bringing actions against those responsible.

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