EU Competition Law. Article 101 and Article 102. January Contents

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1 EU Competition Law January 2010 Contents Article 101 The requirements of Article 101(1) Exemptions under Article 101(3) Article 102 Dominant position Abuse of a dominant position Procedural issues Competition law provisions in the UK

2 EU Competition Law EU Competition Law: The European Community was established in 1957 by the Treaty of Rome and initially comprised six Member States. Following the entry into force of the Treaty of Lisbon on 1 December 2009, the EC Treaty is called the Treaty on the Functioning of the European Union (TFEU). The European Union comprises 27 Member States: Austria, Belgium, Bulgaria, Cyprus (Greek), the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, the Slovak Republic, Slovenia, Spain, Sweden, and the United Kingdom. One of the basic goals of the EU is to create a single, or common, market within Europe. The aim is to allow people, goods, services and capital to move freely among the Member States. To help achieve this basic goal and ensure that consumers are treated fairly and resources allocated efficiently, competition laws which prohibit certain business practices are included in the TFEU. The key competition law provisions are: Article 101, which prohibits restrictive agreements; and Article 102, which prohibits the abuse of a dominant position. 2

3 Article 101 The requirements of Article 101(1) Article 101(1) prohibits as incompatible with EU principles, all agreements between undertakings, decisions by associations of undertakings, and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction, or distortion of competition within the EU. The following must be established for an infringement of Article 101(1): an agreement or concerted practice between two or more undertakings, or a decision by an association of undertakings; which has as its object or effect the prevention, restriction or distortion of competition; an appreciable effect on competition; and an appreciable effect on trade between Member States. The concept of an undertaking under Article 101 includes individuals, partnerships, corporations, limited partnerships, trusts, charities, co-operatives, nationalised firms, stateowned commercial organisations and non-profit making organisations. It could also include government departments and agencies in respect of certain activities. The European Court of Justice has stated that in the context of competition law, the concept of an undertaking encompasses every entity engaged in an economic activity, regardless of the legal status of the entity and the way in which it is financed. Agreements made between companies within the same corporate group will generally not be caught by the competition rules as they will all be treated as part of the same economic entity. It is only when the subsidiary company has the freedom to determine its own prices and marketing policy that the parent and subsidiary may be regarded as separate. Agreement is widely construed and includes written agreements and oral agreements, whether or not they are intended to be legally binding. Informal agreements and gentlemen s agreements are caught: it is sufficient that the undertakings in question have expressed their joint intention to conduct themselves on the market in a specified way. Moreover, the companies involved need not actually reach an agreement as the term concerted practices covers collusion falling short of a definite agreement. A concerted practice might be found, for example, where one company signals to its competitors a future price increase, and that company and its competitors then were to increase prices at or about the same time. For Article 101(1) to apply, the object or effect of the agreement must be to prevent, restrict or distort competition. A non-exhaustive list of agreements which are likely to be anti-competitive are set out in Article 101 (1) and include directly or indirectly fixing purchase or selling prices or any other trading condition, limiting or controlling production, markets, technical developments, or investment and sharing markets or source of supply. Hardcore restrictions such as price-fixing and market sharing are generally considered to constitute restrictions by object. If the object of the agreement is restrictive of competition, it need not be established that it also has restrictive effect, meaning that agreements which are not actually implemented can be caught. Where it is not obvious that the object is to restrict competition, it is necessary to assess whether or not the effect is to prevent, restrict or distort competition. Even if there is no intention, agreements can violate the law if the effect of the agreement is to restrict competition. Article 101(1) requires that the effect on competition should be appreciable. The Commission recognises that many agreements between companies with small market shares or which are small in size (agreements of minor importance and agreements between SMES) are unlikely to have any adverse appreciable affect on competition. Unless they contain certain hardcore restrictions, such agreements will not infringe Article 101(1). 3

4 EC Competition Law Finally, Article 101(1) requires an appreciable effect on trade between Member States in order for the Commission to have jurisdiction. Where an agreement that restricts competition does not have an appreciable effect on trade between Member States then national competition rules are likely to apply. It should be noted that even if a company is not located in a Member State, its activities are subject to the EU competition laws if those activities affect trade between Member States. Although effect on trade is widely defined, agreements between companies with small market shares may benefit from a presumption that such agreements do not have an appreciable effect. Agreements that fall within the prohibition are void and unenforceable. Exemptions under Article 101(3) Even if an agreement is caught by Article 101(1), it may benefit from an exemption under Article 101(3). Companies must assess for themselves whether an agreement meets the criteria for exemption. The Article 101(3) criteria are that the agreement contributes to improving production or distribution, promotes technical or economic progress, allows consumers a fair share of the resulting benefit, does not impose restrictions which are not indispensable to achieving those objectives, and does not eliminate competition. If these criteria are all met, the agreement may be exempt from the application of Article 101(1). Companies may however find that there is greater legal certainty by drafting agreements to ensure that the agreement is consistent with the terms of a block exemption. In particular, an agreement may benefit from the safe harbour provided by the Vertical Agreements Block Exemption, which applies to agreements entered into between two or more firms operating at different levels of the production or distribution chain. Virtually all vertical agreements are exempted by the block exemption provided that the market shares of the supplier and buyer are below 30%. However, any agreement that contains a hardcore restriction will not be exempt. Hardcore restrictions include resale price maintenance and territorial restrictions. There are also other block exemptions that may be relevant, such as the Technology Transfer Block Exemption. 4

5 Article 102 Article 102 prohibits abusive business conduct by an undertaking where that undertaking has a dominant position in a given market within the EU. In contrast to Article 101, Article 102 applies to unilateral action - so a company may violate Article 102 even if it is acting alone. There are three key requirements which must be satisfied in order for the Article 102 prohibition to be applicable: an undertaking must hold a dominant position; there must also be an abuse of that dominant position; and there must be an effect on trade between Member States. Dominant position Article 102 only applies where an undertaking has a dominant position, which effectively means market power. To determine whether or not this is the case it is necessary to examine the relevant market, the undertaking s position in that market, and whether the dominant position is in a substantial part of the common market. Relevant market is defined in terms of the product market, geographic market, and (occasionally) temporal market. The main purpose of market definition is to identify in a systematic way the competitive constraints that the undertakings involved face. These constraints include demand substitutability, supply substitutability and potential competition. Once the relevant market is defined, it is then necessary to determine whether the undertaking holds a dominant position, or substantial market power, on that market. The test of dominance under Article 102 is whether or not an undertaking has such economic strength that it is able to impede effective competition in the relevant market by behaving to an appreciable extent independently of its competitors and customers. In general a company has a dominant position if it can act independently on the market and take pricing and similar actions largely without regard to its competitors, customers or suppliers. The assessment of market power and dominance takes into consideration numerous factors. A key factor is market share: the larger the market share, the more likely a finding of dominance. A rule of thumb has emerged from the European cases regarding the consideration of dominance: where a party had a market share in excess of 80%, that will be sufficient proof of dominance; a market share of 50% is presumptive of dominance (though not conclusive); a market share of 40% will usually not be enough by itself to be dominant; and a party with a market share of less than 20-25% will not be regarded as dominant. However market share is not determinative, and other factors indicating dominance must also be taken into account. These include the existence of any barriers to entry and the extent of any countervailing buyer power. Abuse of a dominant position Article 102 does not prohibit dominant positions per se in order to be caught by Article 102 there must also be an abuse of that dominant position. Article 102 includes a non-exhaustive list of examples of abusive conduct: directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions, limiting production, markets or technical developments to the prejudice of consumers, applying dissimilar conditions to equivalent transactions with other trading parties and making the conclusion of contracts subject to acceptance of supplementary obligations which have no connection with the contracts. The Commission tends to categorise abusive behaviour as either exclusionary or exploitative. Exploitative abuses would include the imposition of unfair purchase or selling prices or other unfair trading conditions. The Commission is generally reluctant to act as a price regulator and it is often difficult to determine what is an excessive price. Article 102 has been more frequently applied to behaviour which is exclusionary and aimed at eliminating existing competitors or preventing new 5

6 EU Competition Law entrants to a market. Examples of exclusionary abuse include refusals to supply, requirements contracts, tie-ins, predatory pricing and price discrimination. There is no direct equivalent to the Article 101(3) exemption under Article 102. However, behaviour that would otherwise be caught by Article 102 may not be abusive if the company has an objective justification for its actions and if it has behaved in a proportionate way. Procedural issues The Commission s powers of investigation The Commission has extensive powers to investigate suspected breaches of the competition rules under Regulation 1/2003. It can initiate on its own or respond to complaints. The Commission can require answers to questions, production of documents and other information, and it may conduct on-site inspections either with or without notice. Commission officials have the right to enter premises where documents may be found, including private home and cars. The Commission has the power to search for various items of information, including those which are not already known or fully identified. Fines and penalties Where breaches have been established, the Commission may impose fines of up to 10% of the total worldwide turnover in the preceding business year. In fixing the amount of the fine the Commission is required to have regard to the gravity of the infringement and its duration. The European Commission does not have the power to fine individuals or send them to jail. Some Member States do however have such powers, e.g. the UK. Appeals Decisions by the European Commission may be appealed to the General Court. The Court has the power to annul a Commission decision, in whole or in part, and may reduce (or even increase) the level of the fine. It is possible to appeal a decision of the General Court, although only on a point of law, to the European Court of Justice. Competition law provisions in the UK The UK, in common with all Member States, has its own competition provisions modelled on Article 101 and Article 102. These are set out in the Competition Act The Chapter I prohibition in the Act reflects Article 101 and prohibits agreements, decisions by associations of undertakings and concerted practices that have as their object or effect the restriction of competition. The Chapter II prohibition reflects Article 102 and prohibits the abuse of a dominant position. The OFT is charged with enforcing the competition rules in the UK and has jurisdiction to apply both UK and EC rules. It has powers to obtain information, carry out onthe-spot investigations, adopt decisions and impose fines on undertakings. The Enterprise Act 2002 introduced a new criminal cartel offence which can lead to the imprisonment of individuals for up to five years and/or the imposition of a fine of an unlimited amount, as well as the disqualification of company directors. 6

7 Contacts Charles Whiddington Partner t: +44 (0) e: Nicholas Pimlott Partner t: +44 (0) e: John Cassels Senior Associate t: +44 (0) e:

8 EU Competition Law This publication is not a substitute for detailed advice on specific transactions and should not be taken as providing legal advice on any of the topics discussed. Copyright Field Fisher Waterhouse LLP All rights reserved. Field Fisher Waterhouse LLP is a limited liability partnership registered in England and Wales with registered number OC318472, which is regulated by the Law Society. A list of members and their professional qualifications is available for inspection at its registered office, 35 Vine Street London EC3N 2AA. We use the word partner to refer to a member of Field Fisher Waterhouse LLP, or an employee or consultant with equivalent standing and qualifications.