EUR-Charts

The following entry should read:

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PART ONE: EU COMPETITION LAW

I. Charts: EU Competition Law (Arts. 101 – 109 TFEU) [C-Charts]

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The following entry should read:

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PART ONE: EU COMPETITION LAW                                                           13

I. Charts: EU Competition Law (Arts. 101 – 109 TFEU) [C-Charts]               13

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The box in the 4rd row, on “Procedure”, on the left hand side, must read:

• Regulation 1/2003/EC (formerly: “Regulation 17″ of 1962);
• Regulation 773/2004/EC;
• Commission Notice on best practices (2011)

 

See Chart C33 et seq.

The 2nd box must read:

Importance of the definition of the relevant market

• For the purposes of Art. 102 TFEU, the proper definition of the relevant market is a necessary precondition for any judgment as to allegedly anti-competitive behaviour; Volkswagen (2000); see Chart C30;
• In other contexts (e.g. Art. 101 TFEU, merger control under Regulation 139/2004/EC and sectoral competition law), it may be an important element, e.g. in relation to the effect on trade between Member States and on competition, and in relation to product_turnover and market shares; Heubach (2005).

Due to the fact that the Commission Guidelines on horizontal co-operation agreements were published in the Official Journal in 2011, the text in the box entitled “Horizontal agreements” must read:

Horizontal agreements

Agreements between companies operating at the same level(s) in the market, i.e. actual or potential competitors; e.g. between wholesalers; Commission Guidelines on horizontal co-operation agreements (2011)

The text in the box entitled “Vertical agreements” (3rd row, on the right hand side) must read:

Vertical agreements: ≤15%

I.e. agreements between non-competitors; see Chart C8

Threshold of 15% _ market share on any of the relevant markets affected by the agreement.

Due to the fact that the Commission Guidelines on horizontal co-operation agreements were published in the Official Journal in 2011, the text in the box entitled “Block exemption regulations (BERs)” must read:

Block exemption regulations (BERs)

• Vertical restraints: Regulation 330/2010/EU, with Commission Guidelines on Vertical Restraints (2010); see Chart C18;

• Specialisation agreements: Regulation 1218/2010/EU, with Commission Guidelines on horizontal co-operation agreements (2011); see Chart C19;

• Research and development: Regulation 1217/2010/EU, with Commission Guidelines on horizontal co-operation agreements (2011); see Chart C20;

• Technology transfer: Regulation 772/2004/EC, with Commission Guidelines on technology transfer agreements (2004); see Chart C21;

• Motor vehicle distribution: Regulation 461/2010/EU;

• Insurance: Regulation 267/2010/EU, with a Commission Communication on the insurance sector (2010);

• Liner shipping: Regulation 906/2009/EC;

• Air passenger tariffs and slot allocation: Regulation 1459/2006/EC (transitional regime).

The box in the 3rd row, entitled “Terms of the Regulation, Arts. 2-8″ must read:

Terms of the Regulation, Arts. 2-8

In principle, all arrangements that do not constitute hardcore restrictions or excluded restrictions are allowed, if the _ market shares of both the supplier and _ the buyer in their respective relevant markets are ≤30% (in the case of a subsequent rise, the exemption continues to apply for a limited period of time).

To the following types of agreements further conditions apply, Art. 2(2)-(4):
• Agreements between an association and its members, or an association and its suppliers;
• Non-reciprocal agreements between competing undertakings;
• Agreements relating to the assignment to, or the use by, the buyer of intellectual property rights provided that those provisions do not constitute the primary object of such agreements and are directly related to the use, sale or resale of the contract goods or services (primary object: see Chart C21).

The box in the 3rd row, entitled “Terms of the Regulation, Arts. 3-5 and 8″ must read:

Terms of the Regulation, Arts. 3-5 and 8

In principle, all arrangements that do not contain hardcore restrictions or excluded restrictions are allowed, if:
• Where the parties are (potential) competitors, the combined market share of the parties is ≤20% on the relevant technology and product market;
• Where the parties are not competitors, the individual market share of each of the parties is ≤30% on the relevant technology and product markets.
In the case of a subsequent rise, the exemption continues to apply for a limited period of time.

For the definition of the technology market, see the Commission Guidelines on technology transfer agreements (2004).

Due to the fact that the Commission Guidelines on horizontal co-operation agreements were published in the Official Journal in 2011, the text in the box entitled “Licence” must read:

Licence

• Agreements containing clauses related to licensing may fall foul under Art. 101(1) TFEU. Block exemptions may apply; if licensing is the primary object of the agreement, see Chart C21; for franchise agreements, see Chart C24.

• Inclusion of an IPR in a standard: licensing must be based on fair, reasonable and non-discriminatory terms (FRAND commitment); Commission Guidelines on horizontal co-operation agreements (2011).

The box in the 2nd row, entitled “Generally: a system of parallel competences”, must read:

Generally: a system of parallel competences

• Arts. 4, 5 and 6 of Regulation 1/2003/EC: the NCAs, the national courts and the Commission share the competence to apply Arts. 101 and 102 TFEU (note: regarding Art. 5, only the Commission and not the NCA is empowered to make a finding that there has been no breach of Article 102 TFEU, even if that provision is applied in a procedure undertaken by an NCA; Tele2 Polska (2011)).;
• Any person or firm affected by anti-competitive behaviour may bring the matter before the national courts and seek damages (private enforcement); e.g. Pfleiderer (2011); see Chart B17.

The box in the 3rd row, entitled “Specifically: shared competence between the NCAs and the Commission, until the Commission takes the case”, must read:

Specifically: shared competence between the NCAs and the Commission, until the Commission takes the case

• Art. 11(1) of Regulation 1/2003/EC: the Commission and the NCAs apply the EU competition rules in close cooperation;
• Art. 11(6) of Regulation 1/2003/EC: proceedings by the Commission under Chapter III of the Regulation relieve the NCAs of their competence. For effect prior to accession: Toshiba (2012).

The box in the 4th row, on the right hand side, must read:

Information by the undertaking to the Commission, in order to obtain a certain (beneficial) reaction from the Commission, namely:

• Finding of inapplicability of Art. 101 TFEU (formal decision), Art. 10 of Regulation 1/2003/EC;
• Informal guidance letter; recital 38 in the preamble to Regulation 1/2003/EC, Commission Notice on guidance letters (2004);
• Immunity from fines (provided cooperation by the undertaking was full, continuous and expeditous; Deltafina (2011)).

The box in the 3rd row, on the left hand side, entitled “Hearing”, must read:

Hearing

Art. 27 of Regulation 1/2003/EC, Arts. 11-14 of Regulation 773/2004/EC

• Upon the request of a party in the written reply to the statement of objection or of a third party that can show sufficient interest;
• Conducted by the hearing officer who ensures respect for the rights of defence, Decision 2011/695/EU.

The box in the 2nd last row, entitled “Possibility of judicial review”, must read:

Possibility of judicial review

• Action for annulment to the General Court under Art. 263 TFEU; see Chart B18.
• Appeal on points of law to the Court of Justice; see Chart B20.

Note: The judicial review provided is compatible with the requirements of the principle of effective judicial protection by EU Courts as required by Art. 6 ECHR and the Charter of Fundamental Rights; KME (2011), which in fact is a follow-up case on the ECHR case Menarini (2011).

The box entitled “… acceptable under certain conditions, Art. 8(2)” (at the bottom, in the middle) should read:

… acceptable under certain conditions,
Art. 8(2)

The concentration is declared compatible with the internal market under certain conditions. The undertakings enter into commitments vis-à-vis the Commission (“remedies”); Commission Notice on remedies (2008).
E.g. Commission Decision Exxon/Mobil (1999), decided under Regulation 4064/89/EEC

A reference is missing. The box in the second last row on the right hand side, entitled “Art. 107 TFEU State aid”, must read:

Art. 107 TFEU
State aid

Altmark (2003), Olsen (2005), UFEX (2006)

See Chart C53

 

The last box, entitled “Notes”, must read:

Notes:

• Services of general economic interest must be istinguished from services of general interest; see Commission Communication on services of general interest (2001), Commission Green Paper on services of general interest (2003), Commission White Paper on services of general interest (2004).

• Following the Lisbon revision, there is a Protocol No 26 on services of general interest.

• Art. 107(1) TFEU does not cover aid granted to undertakings providing services of general economic interest which has an insignificant effect on competition (de minimis); Regulation 360/2012 EU.

The box in the 3rd row, to the right hand side, must read:

There must be an advantage for “certain undertakings or the production of certain goods” in comparison with other undertakings that are in a comparable legal and factual situation; e.g. Commission v Italy (1974), Azores (2006), Gibraltar (2011).

In the last box entitled “Temporary framework in the economic crisis”, the following should be added:

Temporary framework in the economic crisis

The Commission Communication: Temporary Union framework for State aid measures to support access to finance in the current financial and economic crisis (2011) expired on 31 December 2011:

Based on Art. 107(3)(b) TFEU, the Commission _ considered temporary state aid acceptable if it did not exceed a cash grant of EUR 500,000 per undertaking and if it fulfilled certain further criteria.

Commission Communication on the application, from 1 January 2012, of State aid rules to support measures in favour of banks in the context of the financial crisis: The Commission extends the crisis rules for banks.

There are new measures on State aid in the form of public service compensation. Accordingly, the last box, entitled “Follow up on Altmark (2003)” must read:

Follow up on Altmark (2003)

• For certain types of public service obligations that do not meet the Altmark conditions: Commission Decision 2012/21/EU on State aid in the form of public service compensation (Art. 107(1) TFEU applies but there is an exemption under Art. 106(2) TFEU; no notification is required) (replaces Decision 2005/842/EC); see also Commission Communication: European Union framework for State aid in the form of public service compensation (2012) and Commission Communication on the application of the European Union State aid rules to compensation granted for the provision of SGEI (2012);
• For other cases, with the exception of transport and broadcasting: Commission framework for State aid in the form of public service compensation (2011) (notification is required);
• Transport: in particular Regulation 1370/2007/EC (see Chart C52); broadcasting: Commission Communication on the application of State aid rules to public service broadcasting (2009).

The following entries must read:

• Treaty establishing the European Coal and Steel Community, signed in 1951 (English translation: 261 U.N.T.S. 143), not published in the OJ, see: http://eur-lex.europa.eu/en/treaties/index.htm (expired 23 July 2002; “Paris Treaty”)

• Treaty establishing the European Atomic Energy Community, signed in 1957 (English translation: 298 U.N.T.S. 169), not published in the OJ in its original version, see: http://www.eur-lex.europa.eu/en/treaties/treaties_founding.htm (as amended; “Rome Treaty”), most recent codified version: OJ 2012 C 327

• Treaty establishing the European Economic Community (English translation: 298 U.N.T.S. 11), signed in 1957, not published in the OJ in its original version, see: http://eur-lex.europa.eu/en/treaties/index.htm (as amended; “Rome Treaty”); later renamed “Treaty Establishing the European Community”, since 1 December 2010 “Treaty on the Functioning of the European Union”), most recent codified version: OJ 2012 C 326/47

• Treaty establishing a single Council and a single Commission of the European Communities (English translation: 1348 U.N.T.S. 81), signed in 1965, OJ 1967 L 152/2 (“Merger Treaty”)

• Act concerning the election of the representatives of the Assembly by direct universal suffrage, signed in 1976, attached to Council Decision 76/787/ECSC, EEC, Euratom, OJ 1976 L 278/1

• Single European Act, signed in 1986, OJ 1987 L 169/1

• Treaty on European Union, signed in 1992, OJ 1992 C 191/1, most recent codified version: OJ 2012 C 326/13

• Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and related acts, signed in 1997, OJ 1997 C 340/1 (“Amsterdam Treaty”)

• Treaty of Nice amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts, signed in 2001, OJ 2001 C 80/1 (“Nice Treaty”; consolidated versions: OJ 2002 C 325/01)

• Treaty establishing a Constitution for Europe, signed in 2004, OJ 2004 C 310/1 (not entered into force; ”Constitutional Treaty”)

• Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed in 2007, OJ 2007 C 306/1 (“Lisbon Treaty”, consolidated versions: OJ 2008 C 115/1, OJ 2010 C 83/1, OJ 2012 C 326 and 327)

• Charter of Fundamental Rights of the European Union (including explanations relating to the interpretation of the Charter), OJ 2012 C 326/391 (originally: OJ 2000 C 364/01, subsequently reenacted: OJ 2007 C 303/1)

• Protocol on protection and welfare of animals, OJ 1997 C 340/110

• Protocol (No 2) (annexed to the Lisbon Treaty) amending the Treaty establishing the European Atomic Energy Community, OJ 2007 C 306/199

• Protocol (No 3) on the Statute of the Court of Justice, OJ 2012 C 326/210

• Protocol (No 26) on services of general interest, OJ 2012 C 326/308

• Protocol (No 27) on the internal market and competition, OJ 2012 C 326/309

Update the following:

• Regulation    1370/2007/EC    on    public    passenger    transport    services    by    rail    and    by    road and repealing Council Regulations (EEC) Nos 1191/69 and 1107/701, OJ 2007 L 315/1

C52, C53

Add the following:

• Regulation 360/2012/EU on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid granted to undertakings providing services of general economic interest, OJ 2012 L 114/8

C46

•    Decision 2005/842/EC on the application of Article 86(2) of the EC Treaty to State aid in the form of public service compensation granted to certain undertakings entrusted with the operation of services of general economic interest, OJ _ 2005 L 312/67 (no longer in force)	C53
•    Decision 2011/695/EU: Decision of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings OJ 2011 L 275/29	C37
•    Decision 2012/21/EU on the application of Article 106(2) of the Treaty on the Functioning of the European Union to State aid in the form of public service compensation granted to certain undertakings entrusted with the operation of services of general economic interest OJ 2012 L 7/3	C53

The following entry must read:

Pfleiderer (2011):          Case C‑360/09 Pfleiderer AG v Bundeskartellamt, judgment of 14 June 2011, n.y.r. (Grand Chamber)          C34

Velcro/Aplix (1985):               Decision 85/410/EEC relating to a proceeding under Article 85 of the EEC Treaty (Velcro/Aplix), OJ 1985 L 233/22         C15

Update the following entries:

Commission Communication: Temporary Union framework for state aid measures to support access to finance in the current financial and economic crisis (2010)	Temporary Union framework for State aid measures to support access to finance in the current financial and economic crisis, OJ 2011 C 6/5 (no longer in force)	C51
Commission Guidelines on horizontal co-operation agreements (2010)	Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co-operation agreements, OJ 2011 C 11/1 (as corrected)	C8, C16, C27

Add the following entry:

Commission Notice on remedies (2008)	Commission notice on remedies acceptable under Council Regulation (EC) No 139/2004 and under Commission Regulation (EC) No 802/2004, OJ 2008 C 267/1	C43
Commission Communication on the application of State aid rules to support measures in favour of banks in the context of the financial crisis (2011)	Communication from the Commission on the application, from 1 January 2012, of State aid rules to support measures in favour of banks in the context of the financial crisis, OJ 2011 C 356/7	C51
Commission Notice on best practices (2011)	Commission notice on best practices for the conduct of proceedings concerning Articles 101 and 102 TFEU, OJ 2011 C 308/6	C2
EU Framework for State aid in the form of public service compensation (2011)	Communication: European Union framework for State aid in the form of public service compensation, OJ 2012 C 8/15	C53
Commission Communication on the application of the European Union State aid rules to compensation granted for the provision of SGEI (2012)	Commission Communication on the application of the European Union State aid rules to compensation granted for the provision of services of general economic interest, OJ 2012 C 8/4	C53

The following entries must read:

Alrosa (2010):              Case C-441/07 P European Commission v Alrosa Company Ltd [2010] ECR I-5949 (Grand Chamber)          C38

AOK (2004):               Joined cases C-264/01, C-306/01, C-354/01 and C-355/01 AOK
Bundesverband and others v Ichthyol-Gesellschaft Cordes and others
[2004] ECR I-2493          C3

The following entry must read:

BUPA (2008):               Case T-289/03 British United Provident Association Ltd (BUPA), BUPA Insurance Ltd and BUPA Ireland Ltd v Commission of the European Communities. [2008] ECR II-81          C53

Deltafina (2011):               Case T-12/06 Deltafina SpA v Commission, judgment of 9 September 2011, n.y.r.          C35

Gibraltar (2011):               Joined cases C-106/09 P and C-107/09 Commission (C-106/09 P) and Kingdom of Spain (C-107/09 P) v Government of Gibraltar and United Kingdom of Great Britain and Northern Ireland, judgment of 15 November 2011 (Grand Chamber)          C50

The following entry must read:

La Cinq (1992):               Case T-44/90 La Cinq SA v Commission [1992] ECR II-1          C37

KME (2011):               Case C-272/09 P KME Germany AG v. European Commission, judgment of 8 December 2011, n.y.r.

The following entries must read:

Traghetti (2010):               Case C-140/09 Fallimento Traghetti del Mediterraneo SpA v Presidenza
del Consiglio dei Ministri [2010] ECR I-5243           C53

X (2009):                 Case C-429/07 Inspecteur van de Belastingdienst v X BV [2009] ECR I-4833          C34

 

The following entries must be added:

Tele2 Polska (2011):               Case C-375/09 Prezes Urzędu Ochrony Konkurencji i Konsumentów v Tele2 Polska sp. z o.o., devenue Netia SA, judgment of 3 May 2011, n.y.r. (Grand Chamber)          C34

Toshiba (2012):               Case C-17/10 Toshiba Corporation and Others v Úřad pro ochranu hospodářské soutěže, judgment of 14 February 2012, n.y.r. (Grand Chamber)          C34

The following new title and the following new entry must be added:

VII. Case law of the European Court of Human Rights

Menarini (2011)               Affaire A. Menarini Diagnostics S.r.l. c. Italie, Requête no 43509/08, judgment of 27 September 2011          C37

The following entry must read:

European Convention on Human Rights……………C36-C38, B7