ÇEVRE STANDARTLARINI KARŞILAMAK VERGİ ÖDEMEK VE GÜMRÜK BİRLİĞİNDEN İSTİFADE ETMEK

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1 AB-Türkiye Odalar Forumu (ETCF) projesi Avrupa Birliği tarafından finanse edilmektedir Türk İş Dünyası İçİn AB Mevzuatı Ortak Pazarda TicareT ETKİN REKABET ETMEK ÇEVRE STANDARTLARINI KARŞILAMAK VERGİ ÖDEMEK VE GÜMRÜK BİRLİĞİNDEN İSTİFADE ETMEK AB DIŞINDA İŞ YAPMAK TARIM VE BALIKÇILIKTA STANDARTLARI KARŞILAMAK

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3 ÖNSÖZ Bir yanda, Türkiye ile Avrupa Birliği (AB) arasında, 1963 yılında imzalanan Ankara Anlaşması na dayanan ve 1996 yılında yürürlüğe giren Gümrük Birliği, diğer taraftan Avrupa Birliği Devlet ve Hükümet Başkanlarının 17 Aralık 2004 tarihli Zirvesinde aldığı karar doğrultusunda 3 Ekim 2005 tarihinde Lüksemburg ta yapılan Hükümetlerarası Konferans ile Türkiye nin resmen AB ye katılım müzakerelerine başlaması, Türk iş dünyasının iş yapış tarzı ve geleceğe dair stratejileri üzerinde ciddi sonuçlar doğurmaktadır. Bu sebepten dolayı, iş dünyası temsilcisi kuruluşlar olan Türkiye Odalar ve Borsalar Birliği (TOBB) ve Avrupa Ticaret ve Sanayi Odaları Birliği (EUROCHAMBRES), iki yıl süreli, AB-Türkiye Oda Forumu (ETCF) projesini yürütmeye karar vermiştir. ETCF projesinin amacı, sivil toplumun önemli birer üyesi olan Türk ve Avrupalı Odalar arasında karşılıklı bilgi, diyalog ve uzun dönemli işbirliğini geliştirmek, bu sayede AB ve Türk iş camialarının entegrasyonuna yardımcı olmaktır. TOBB ve EUROCHAMBRES işbirliğinde Kasım 2008 de yayımlanan AB Üyeliği için Türkiye deki Kurumsal Hazırlıklar başlıklı anket, Türkiye de, AB ile ilgili konulardaki bilgi eksikliğine dikkat çekmiştir. Sadece AB nin ilgili mevzuatı ile alakalı bilgi değil, AB ve Türkiye arasındaki müzakere süreci ile ilgili olarak da iş dünyası ne yazık ki yeterli bilgiye sahip değildir. Türk Oda ağı içerisinde, şirketleri AB süreci ve sürecin iş dünyası üzerindeki mevcut ve muhtemel etkileri hakkında bilgilendirebilecek ve dolayısıyla şirketler kesiminin de dolaylı veya doğrudan müzakere sürecine katılmalarını sağlayabilecek, ciddi bir AB uzmanlığına ihtiyaç duyulmaktadır. İşte bu ihtiyacın giderilmesine yardımcı olmak için ve Türk Oda temsilcilerine yönelik olarak, Ankara Üniversitesi Avrupa Toplulukları Araştırma ve Uygulama Merkezi (ATAUM) ve Bahçeşehir Üniversitesi ile işbirliği halinde TOBB ve EUROCHAMBRES tarafından düzenlenen eğitim programını tamamlayıcı olarak altı kitapçık basılmaktadır. Bu altı başlığın seçiminde Türk iş dünyasının öncelikleri göz önünde bulundurulmuştur. Bu çerçevede, rekabet politikası üzerine hazırlanmış bu kitapçığı sizlerle paylaşmaktan memnuniyet duyuyoruz. Rekabet politikasını Ortak Pazar çerçevesinde değerlendirmek gerekmektedir. Pazar ekonomisinin sorunsuz işleyebilmesi için etkin bir rekabet elzemdir. Dolayısıyla AB de en çok önem verilen ve düzenlemeye tabii olan alanlardan birisi rekabettir. Türkiye, AB Rekabet Politikası na uyum konusunda, bilhassa Gümrük Birliği gerçekleştikten sonra ciddi bir yol katettiysede, devlet yardımları alanında halen farklılıklar bulunmaktadır. Pierre SIMON Başkan, EUROCHAMBRES M. Rifat HİSARCIKLIOĞLU Başkan, TOBB

4 Bu proje AB tarafından finanse edilmektedir. EUROCHAMBRES ve TOBB 2009 Bu kitapçık AB-Türkiye Oda Forumu Projesi (ETCF) çerçevesinde yayımlanmıştır. ETCF projesi Avrupa Ticaret ve Sanayi Odaları Birliği (EUROCHAMBRES) ile Türkiye Odalar ve Borsalar Birliği tarafından yürütülen iki yıllık bir projedir. ETCF projesi 2006 yılı Katılım Öncesi Mali Yardım Programı kapsamında, tamamen Avrupa Birliği (AB) tarafından finanse edilmektedir. Proje, Türk Ticaret ve Sanayi Odaları ile AB deki muhatapları arasında karşılıklı bilgi, diyalog ve uzun vadeli işbirliğini güçlendirmeyi; böylece AB ile Türk iş çevrelerinin entegrasyonunu kolaylaştırmayı amaçlamaktadır. Bu doküman aşağıdaki internet sitelerinden ücretsiz olarak indirilebilir: EUROCHAMBRES ve TOBB tarafından hazırlanmıştır EUROCHAMBRES Avenue des Arts 19 A/D B 1000 Brussels Belgium Tel: +32 (0) Fax: +32 (0) TOBB Dumlupınar Bulvarı No: 252 (Eskişehir Yolu 9. km) ANKARA Tel: +90 (312) Fax: +90 (312) Basım: Morris & Chapman, Brüksel, Belçika ETCF kitapçıkları EUROCHAMBRES ve TOBB un ürünüdür. Çalışmanın içeriği kaynak açık bir şekilde ifade edilerek kullanılabilir.

5 İçindekiler I. Avrupa Birliği Rekabet Politikası ve Rekabet Hukukunun Temel Prensipleri, Dace L. Luters-Thümmel Giriş Avrupa Birliği Rekabet Hukukunun Temel Unsurları Genel Çerçeve...25 Notlar...26 II. AB Rekabet Müktesebatının Türk Hukukuna Uyarlanması, Barış Ekdi Ortak Pazar ve Rekabet Hukuku Antitröst ve Birleşme-Devralma Kurallarının Uyumlaştırılması Devlet Yardımlarının İzlenmesi ve Denetlenmesi Kamu Teşebbüsleri, Münhasır Haklara Sahip Teşebbüsler, Özelleştirme, Serbestleştirme ve Sektörel Düzenlemeler Sürecin Değerlendirilmesi ve Sonuç...41 Ek AB Rekabet Mevzuatına Uyuma Dair Karşılaştırma Tablosu...42 Notlar...43 Kaynakça...44 III. AB REKABET MEVZUATININ UYGULANMASININ ŞİRKETLER ÜZERİNDEKİ ETKİSİ, Barış Ekdi Piyasa Ekonomisi, Rekabet ve Rekabet Hukuku Antitröst ve Birleşme-Devralma Kurallarının Uygulanması Devlet Yardımlarının İzlenememesi ve Denetlenememesinin Etkisi Kamu Teşebbüsleri, Münhasır Haklara Sahip Teşebbüsler, Serbestleştirme ve Sektörel Düzenlemelerin Etkisi AB ile Türkiye Arasındaki Gümrük Birliği Perspektifinden Uygulama Sonuç...56 Notlar...57 Kaynakça...57 IV. Daha Fazla Bilgi İçin, Dace L. Luters-Thümmel AB ve Türkiye deki Temas Noktaları Temel Kaynaklar Internet sayfaları Kaynakça...64 Yazarların Özgeçmişleri...66

6 Competition Basic Principles of European Competition Policy and Law Dace L. LUTERS-THÜMMEL, MELS (Luxembourg/Nancy) attorney-at-law, Düsseldorf/Brussels/Riga* I. IntroductIon 1. General Framework and Objectives of the Handbook on European Competition Policy (TOBB) to meet the particular needs of the Turkish business community. The project and handbook aims at strengthening the mutual knowledge, dialogue and long-term co-operation between the Turkish Chambers and their counterparts in the EU. The Handbook on European Union (EU) Competition Policy has been written in the framework of the EU Programme for Pre-Accession Assistance to the Republic of Turkey. It is published in the context of a two year EU project of the EU- Turkey Chambers Forum (ETCF) that was implemented by the Association of European Chambers of Commerce and Industry (EUROCHAMBRES) in Brussels in close co-operation with the Union of Chambers and Commodity Exchanges of Turkey * For more than 15 years the author is consulting companies, governments and parliaments in the Eastern and Western part of Europe on EC law issues and on the correct transposition of the acquis communautaire into national legislation. Suggestions or corrections are welcome and may be sent to thuemmel. luters.duesseldorf@t-online.de A Survey on Corporate Preparations in Turkey for EU Membership undertaken in 2008 by EUROCHAMBRES and TOBB identified a notable information gap on EU related issues among Turkish companies. This outcome indicated that there is a growing need for comprehensive expertise in EU affairs within the Turkish Chamber network. In order to give the Turkish Chamber executives a useful tool at hand to support Turkish companies to fully understand the impact of policies developed at European level which might affect their businesses, a series of Handbooks on the most important EU policies have been published now. The main objective of this handbook is to provide essential information and guidance on EU policies in 6

7 Etkin Rekabet Etmek: AB Rekabet Politikası > Avrupa Birliği Rekabet Politikası ve Rekabet Hukukunun Temel Prensipleri the area of competition not only for lawyers, but also for nonlawyers that are dealing with the consultation of the Turkish business community. On the one hand, the authors have tried to focus their contributions on the main features of this complex matter that can serve as a general navigation tool also for readers without a legal education. On the other hand, this also means that the handbook is giving first general information to handle competition issues in general. However, it will not be and is not ment to be an all-embracing document that enables the reader to make an indepth analysis of an individual case. Therefore, the reader might be required to study the matter further and in more detail. For this reason, additional sources of information are attached in the last part of this handbook, where the reader is given further documentation and jurisdiction that could provide a response to open questions. If the issue still needs clarification, it is highly recommended to contact external experts either from the Turkish Competition Authority or law firms to give further assistance and advice as some activities - as the reader will learn later on - might need an authorisation before their execution. 2. Status quo of Competition Policy in Europe and Turkey 2.1. European competition policy has to be understood in the general context of the common market of the European Community. In order to be able to establish a common market, it was necessary not only to eliminate fiscal and regulatory barriers to trade, but also to eliminate economic barriers to trade within the European Community. The free circulation of goods and services and the functioning of the internal market would have been endangered, if some companies distorted free competition by squeezing out their competitors of the market or by negotiating agreements with their competitors to restrict competition, being finally able to dictate excessive prices to the disadvantage of smaller business partners or consumers. In so far one of the most important and most regulated areas in the European Union is the area of competition law. It has on the one hand the general objective to ensure the functioning of the internal market, where companies can compete with eachother under even conditions, and on the other hand, it is directed at protecting smaller businesses and consumers from unfair behaviours. The overall objective was and is in the end to achieve lower prices, better product or service quality and a greater variety of options for the consumer. The area of European competition law has three main cornerstones: 1. antitrust rules, 2. merger rules and 3. the provisions for state aid. These areas will be dealt with in detail in Section II The close co-operation between the European Union and the Republic of Turkey dates back from the 1960ies of the last century. The Agreement Establishing an Association between the European Economic Community and the Republic of Turkey of 12 September came into force on 1 December Article 16 of the Agreement explicitly states that the parties to the agreement recognize the competition principles as they are laid down in the Treaty establishing the European Community and that legal provisions have to be made compatible with these principles (so-called approximation) within the context of the Association. On the basis of this Association Agreement and its Article 22 the Decision No 1/95 of the EC-Turkey Association Council of 22 December 1995 on implementing the final phase of the Customs Union (96/142/EC) was taken. Its Section II on Competition (Art ) does reflect the competition provisions of the core articles on competition in the Treaty establishing the European Community 2 (EC Treaty). Article 39 of the Decision No 1/95 stipulates that Turkey shall ensure that its legislation in the field of competition rules is made compatible with that of the European Community and that it shall adopt a law which shall prohibit such behaviours of companies that are forbidden under the rules of the EC Treaty. According to this obligation the Turkish government prepared a draft that was adopted by the Turkish Parliament as the Act on the Protection of Competition, Act No of 7 December 1994, as amended, which nowadays regulates the Turkish competition policy. This piece of legislation is also reflecting the core articles on competition of the EC Treaty [for more details on the transposition of EC law into Turkish legislation, see the following article by Mr. Barış Ekdi on the implementation of EC law into Turkish legislation]. In addition to this Act on the Protection of Competition, also the related regulations and guidelines that parallely have been issued by the Turkish Competition Authority have to be observed. In so far, it is little-known or only expert knowledge that the Turkish legislation relates considerably to the concepts and provisions that have been developed at European level.

8 2.3. The recent global financial crisis has restarted the general debate over the main objectives of competition policy: whether it should stress the necessity of undistorted and fair competition as a goal in itself or focus more on consumer protection. With the crisis the general attitude in society has become more sceptic with regard to the concept of free competition. The decision to take the principle of undistorted competition out of the main text of the Reform Treaty of Lisbon of 13 December and to attach it to the Treaty text in a Protocol on the internal market and competition, might be regarded as an indication of a certain rethinking of former attitudes. In the light of the financial problems of the Member States (MS) companies, the preservation of free competition seems to have lost its priority status for some Member States governments that favour more involvement of the state and hesitate to set the bull free. But it should be emphasized that the Treaty establishing the European Community (EC) clearly stipulates the main and steady principle that the Community shall have the task to promote a high degree of competitiveness (Art. 2 EC) and that the activities of the Community shall include a system ensuring that competition in the internal market is not distorted and the strengthening of the competitiveness of Community industry (Art. 3 EC). The European Commission as the guardian of the (European) Treaties keeps an eye on these recent developments and accompanies the crisis with a considerable amount of additional announcements and communications to the Member States. To the contrary of these new tendencies, practice has shown that the increasing internationalisation of business (and its failures) forces the national competition authorities and the Commission to co-operate even more closely and that a concerted effort of all states concerned is required to preserve the system of undistorted competition. In times when part of the companies are tumbling down and there is a threat that only the biggest players with a longer breath will survive to dominate the markets with a potential to abuse their market position, it is crucial that a watchdog is supervising the markets and the market players. Having this in mind, it is of importance that also the Turkish business community is aware of the generally accepted principles of European competition rules and current tendencies that take effect in Turkey through the parallely adopted Turkish acts, regulations and guidelines on the national level. In the following chapters the author will be dealing with the most important principles of European competition law which a Turkish company may encounter even if the general perception is that only Turkish laws and competition principles are being applied. II. Main Features of European Competition Law The general European competition law system consists of three different parts: primary law, i.e. the respective articles of the Treaty establishing the European Community in Chapter 1 Rules on Competition of Title VI Common Rules on Competition, Taxation and Approximation of laws, namely the articles 81 to 89 EC secondary law, i.e. regulations (directly applicable in MS) and directives (to be nationally transposed in MS) adopted according to the European legislative procedures, accompanied by related regulations, guidelines, notices, recommendations, explanatory brochures, explanatory notes and clarifications that are issued by the European Commission in its executive or delegated legislative capacity jurisdiction of the European Courts of the European Communities in Luxembourg in competition cases, i.e. the Court of First Instance (CFI), cases numbered T - case number/year and the European Court of Justice (ECJ), cases numbered C - case number/year in the context of its competence for appeals and preliminary rulings and is complemented by the current practice of the European Commission that takes decisions in its executive capacity in those individual cases that have a particular Community dimension and where the Commission is better placed to deal with the case than national competition authorities. 1. Antitrust rules The main EC competition rules dealing with companies in the private and public sectors are Articles 81 and 82 EC. These articles have direct effect within the European Union and since Council Regulation (EC) No 1/ came into effect - abolishing a notification procedure to the Commission -, companies that fall within the scope of application do not need a prior decision 8

9 Etkin Rekabet Etmek: AB Rekabet Politikası > Avrupa Birliği Rekabet Politikası ve Rekabet Hukukunun Temel Prensipleri by the competent authorities on their permission, but first have to evaluate themselves, if they are acting within the permitted boundaries of EC competition law (so-called legal exception regime ). If action needs to be taken on behalf of the authorities then it is the national competition authorities or courts that apply and enforce Articles 81 and 82 directly and parallely to national competition rules. Only if a particular Community dimension requires so, the Commission steps in. Article 81 EC has a three-fold structure: Paragraph 1: Prohibition of certain types of behaviour (collusion) and agreements between undertakings Paragraph 2: Nullification of agreements and decisions falling under 81 (1) 1.1. Article 81 EC The core provision of antitrust rules is Art. 81 EC which prohibits restrictive practices of companies that in legal Euro(pean) -jargon are called undertakings. Paragraph 3: Cases of exemptions from the prohibition in Art. 81 (1) As the wording is of great importance and is also reflected in the articles 4 and 5 of the Turkish Act on the Protection of Competition, Act No. 4054, it shall be quoted: ArtIcle 81 EC 1. The following shall be prohibited as incompatible with the common market: 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 common market, and in particular those which: a. directly or indirectly fix purchase or selling prices or any other trading conditions; b. limit or control production, markets, technical development, or investment; c. share markets or sources of supply; d. apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; e. make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts. 2. Any agreements or decisions prohibited pursuant to this Article shall be automatically void. 3. The provisions of paragraph 1 may, however, be declared inapplicable in the case of: any agreement or category of agreements between undertakings, any decision or category of decisions by associations of undertakings, any concerted practice or category of concerted practices, which contributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, and which does not: a. impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives; b. afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question.

10 Art. 81 (1) EC Prohibition of restrictive practices Article 81 (1) EC and European jurisdiction sets the general rule that prohibited are: all agreements, decisions and concerted practices between [two or more] 5 undertakings, which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market [to an appreciable extent] Undertaking The addressees of the prohibition are undertakings. The European Court of Justice has given a definition for a unit that is considered to be an undertaking in the meaning of Article 81 EC: 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 6 The notion of entity does include a company, partnership or sole trader or association, whether or not dealing with its members. 7 What matters is the economic activity, not if the entity has legal personality, insofar the approach is merely functional. The economic activity does not necessarily require to gain profits out of the activity. 8 Targeted are economic units which consist of a unitary organisation of personal, tangible and intangible elements which pursues a specific economic aim on a long-term basis, is autonomous in decision-making and can contribute to an activity prohibited by Article 81 EC. It has also been repeatedly stated by the European Court of Justice that also individuals 9 can be regarded as undertakings. So liberal professions can also qualify as undertakings: lawyers 10, even world-class opera singers 11 - i.e. artists - have been treated as undertakings according to EC competition law. Entities that operate under official powers can nevertheless be considered as undertakings according to EC competition rules. 12 But public sector buying power is still being not regarded as an economic activity. The Court of First Instance confirmed a decision by the European Commission that health funds providing care and buying from the private sectors were not undertakings when acting in the exercise of public activities, even if buying large quantities on favourable terms and enjoying substantial market power. 13 A group of companies is treated as a single undertaking when acting under common control. 14 Agreements within a corporate group would then generally fall outside the scope of application of Article 81 EC. However, the assessment of a parent company and its affiliate as a single undertaking can differ depending on the percentage by which the affiliate is owned by the parent company. A 51% subsidiary of a parent company has been considered to be jointly dominant with its parent company. 15 The test if a parent - subsidiary group has to be treated as a single unit depends also on the issue in how far the subsidiary has real freedom to determine its course of action on the market. 16 In cases, where the subsidiary (disobediently) acted independently from the (lawful) instructions of the parent company and infringed Art. 81, the subsidiary was fined Agreement Agreements in the meaning of Article 81 EC have a broader meaning than only contracts in their true sense. Agreements not only include contracts 18, but also so-called gentlemen s agreements 19, implementing oral and written arrangements. The notion even includes agreements that have not been signed, but were implemented, 20 and agreements that have been signed, but were not implemented 21. In so far, the qualification as an agreement does follow more a factual than a formal approach. The decision of an association of undertakings also represents an agreement between undertakings. The agreement may be constituted of the decisions of the association s members as such, but also of a recommendation of the association to its members, even if it is not binding 22. Recommendations that are implemented after attending general meetings of trade associations have also been qualified as agreements between the members. 23 With regard to supplier-dealer contracts the Community Courts extended the notion of collusion to a unilateral conduct of a supplier, too. In the context of a long-term contract dealers had entered into a selective distribution agreement with the supplier who refused to supply those dealers who did not accept his distribution policy. In the case AEG Telefunken 24 the undertaking refused to supply those dealers who were not following its resale price policy. The European Court of Justice held that the approval of a 10

11 Etkin Rekabet Etmek: AB Rekabet Politikası > Avrupa Birliği Rekabet Politikası ve Rekabet Hukukunun Temel Prensipleri distributor to the agreement was based on the acceptance of AEG s policy either tacit or express, by the contracting parties which also required the exclusion of all distributors who are not prepared to adhere to that policy. Being in such a kind of contractual relationship under the above-mentioned conditions was qualified as a collusion between both parties. This case-law was refined by later judgments where the Courts set the standard higher and expected a proven existence of a concurrence of wills between at least two parties, the form in which it is manifested being unimportant so long as it constitutes the faithful expression of the parties intention. 25 The burden of proof for a collusion being then on the Commission, who did not succeed to prove the collusion between the parties in the case quoted Concerted Practice (also called Cartel ) Since the wellknown Dyestuff cases a concerted practice has been defined as: a form of coordination between undertakings which, without having reached the stage where an agreement properly so-called has been concluded, knowingly substitutes practical cooperation between them for the risks of competition. 26 That means that parallel conduct on the market as a result of collusion between undertakings is covered by the notion of concerted practices. Even the intent to concert is sufficient to establish a concerted practice, even if there are no actual effects. 27 To attend meetings that have this intention without objecting, or even missing some of those meetings did not prevent some producers of being fined for a concerted practice. 28 In Suiker Unie 29 the European Court of Justice found that: 173 THE CRITERIA OF COORDINATION AND COOPERATION 30 LAID DOWN BY THE CASE-LAW OF THE COURT, WHICH IN NO WAY REQUIRE THE WORKING OUT OF AN ACTUAL PLAN, MUST BE UNDERSTOOD IN THE LIGHT OF THE CONCEPT INHERENT IN THE PROVISIONS OF THE TREATY RELATING TO COMPETITION THAT EACH ECONOMIC OPERATOR MUST DETERMINE INDEPENDENTLY THE POLICY WHICH HE INTENDS TO ADOPT ON THE COMMON MARKET INCLUDING THE CHOICE OF THE PERSONS AND UNDERTAKINGS TO WHICH HE MAKES OFFERS OR SELLS. Following this line of reasoning the Court held further that: 174 ALTHOUGH IT IS CORRECT TO SAY THAT THIS REQUIREMENT OF INDEPENDENCE DOES NOT DEPRIVE ECONOMIC OPERATORS OF THE RIGHT TO ADAPT THEMSELVES INTELLIGENTLY TO THE EXISTING AND ANTICIPATED CONDUCT OF THEIR COMPETITORS, IT DOES HOWEVER STRICTLY PRECLUDE ANY DIRECT OR INDIRECT CONTACT BETWEEN SUCH OPERATORS, THE OBJECT OR EFFECT WHEREOF IS EITHER TO INFLUENCE THE CONDUCT ON THE MARKET OF AN ACTUAL OR POTENTIAL COMPETITOR OR TO DISCLOSE TO SUCH A COMPETITOR THE COURSE OF CONDUCT WHICH THEY THEMSELVES HAVE DECIDED TO ADOPT OR CONTEMPLATE ADOPTING ON THE MARKET. 175 THE DOCUMENTS QUOTED SHOW THAT THE APPLICANTS CONTACTED EACH OTHER AND THAT THEY IN FACT PURSUED THE AIM OF REMOVING IN ADVANCE ANY UNCERTAINTY AS TO THE FUTURE CONDUCT OF THEIR COMPETITORS. Fears of the business community that this interpretation would already prohibit any announcement of price increases to customers or the press as a concerted practice if competitors followed the increases were allayed with a later judgment. In Wood Pulp 31 the Court declared that quarterly price announcements on the maximum prices to customers 64 constitute in themselves market behaviour which does not lessen each undertaking s uncertainty as to the future attitude of its competitors. At the time when each undertaking engages in such behaviour, it cannot be sure of the future conduct of the others. 65 Accordingly, the system of quarterly price announcements on the pulp market is not to be regarded as constituting in itself an infringement of the Treaty.

12 Mere parallel conduct as such is not prohibited, but it may amount to strong evidence of a concerted practice if it leads to conditions which do not correspond to the normal conditions of competition. 32 What follows from this is that every individual case has peculiarities that have to be looked at very thoroughly in accordance with existing and developing jurisdiction. As the Commission is always emphasizing a case by case analysis is to be made. As the standard for the qualification as a concerted practice under EC competition rules is comparatively easily met according to the wide range of jurisdiction, CEOs of companies - also, or in particular, when meeting privately with their families - are recommended, to be very cautious in not to give any reasons for suspicion by addressing business issues with competitors in a concrete manner. There has been a considerable number of cases where the European Commission has heavily fined members of cartels that had been meeting privately in nice places like châteaus on weekends over a long period of many years, even decades. To prevent a company from paying heavy fines a new owner, for instance, might consider - after having got to know of these old habits - to inform the European Commission of such old practices. There exists a Leniency Programme for whistleblowers which will be looked at later on in Section Affecting trade between Member States The objective of Article 81 EC is to ensure the functioning of the internal market, therefore only restrictive practices that have a European Community dimension are covered by the prohibition under European competition rules. The European Court of Justice ruled 33 : THE CONCEPT OF AN AGREEMENT WHICH MAY AFFECT TRADE BETWEEN MEMBER STATES IS INTENDED TO DEFINE, IN THE LAW GOVERNING CARTELS, THE BOUNDARY BETWEEN THE AREAS RESPECTIVELY COVERED BY COMMUNITY LAW AND NATIONAL LAW. IT IS ONLY TO THE EXTENT TO WHICH THE AGREEMENT MAY AFFECT TRADE BETWEEN MEMBER STATES THAT THE DETERIORATION IN COMPETITION CAUSED BY THE AGREEMENT FALLS UNDER THE PROHIBITION OF COMMUNITY LAW CONTAINED IN ARTICLE 85 [now 81] 34 ; OTHERWISE IT ESCAPES THE PROHIBITION. IN THIS CONNEXION, WHAT IS PARTICULARLY IMPORTANT IS WHETHER THE AGREEMENT IS CAPABLE OF CONSTITUTING A THREAT, EITHER DIRECT OR INDIRECT, ACTUAL OR POTENTIAL, TO FREEDOM OF TRADE BETWEEN MEMBER STATES IN A MANNER WHICH MIGHT HARM THE ATTAINMENT OF THE OBJECTIVES OF A SINGLE MARKET BETWEEN STATES [emphasis by the author]. THUS THE FACT THAT AN AGREEMENT ENCOURAGES AN INCREASE, EVEN A LARGE ONE, IN THE VOLUME OF TRADE BETWEEN STATES IS NOT SUFFICIENT TO EXCLUDE THE POSSIBILITY THAT THE AGREEMENT MAY AFFECT SUCH TRADE IN THE ABOVEMENTIONED MANNER. In 2004 the European Commission published the latest Guidelines on the effect on trade concept contained in Articles 81 and 82 of the Treaty 35 that reflect the European jurisdiction clarifying that: 21.an effect on trade between Member States implies that there must be an impact on cross-border economic activity involving at least two Member States. It is not required that the agreement or practice affect trade between the whole of one Member State and the whole of another Member State. Articles 81 and 82 may be applicable also in cases involving part of a Member State, provided that the effect on trade is appreciable That means that also an agreement or practice that relates only to one single Member State can be prohibited according to European competition rules as long as the effect on trade between Member States is appreciable. It is not a requirement that the undertaking has a seat or branch in the territory of the European Community, one or even more of the parties involved can be located outside. Article 81 applies irrespective of where the undertakings are located or where the agreement has been concluded, provided that the agreement or practice is either implemented or produces effects inside the Community

13 Etkin Rekabet Etmek: AB Rekabet Politikası > Avrupa Birliği Rekabet Politikası ve Rekabet Hukukunun Temel Prensipleri It also ought to be mentioned that European and national competition rules have to be observed parallely. If European competition law is not applicable, it does not automatically mean that national competition law is not infringed Restricting competition In the Consten/Grundig case the Court found that:, FOR THE PURPOSE OF APPLYING ARTICLE [81 (1)] 37, THERE IS NO NEED TO TAKE ACCOUNT OF THE CONCRETE EFFECTS OF AN AGREEMENT ONCE IT APPEARS THAT IT HAS AS ITS OBJECT 38 THE PREVENTION, RESTRICTION OR DISTORTION OF COMPETITION. It is in other words sufficient for the application of Art. 81 EC that an agreement or practice has the objective or the effect 39 to restrict competition. A differentiation whether the restriction takes effect on a horizontal or vertical level of business relations is not made. Examples for anti-competitive agreements and behaviour are: 40 co-ordination or fixing of prices, discounts or other trading conditions allocation or sharing of markets (geographic markets, product markets, customers {size or type of business}) exchange of information about prices, production and development costs, market shares, etc. discrimination: boykott, non-objective differences to similar transactions limitation or control of technical development, investments or raw materials reciprocal exclusive purchase, distribution or licence agreements tying Examples of permitted behaviour: development of standards co-ordination of legislative avocacy (lobby) efforts Non-exclusive exchange of technology and systems discussing market trends and joint marketing of industrial sector to an appreciable extent As already quoted above jurisprudence and the practice of the European Commission base the effect on trade criterion also on a quantitative element. European competition rules are limited to agreements and practices that are capable of having effects of a certain magnitude. Agreements and practices fall outside the scope of application when they affect the market only insignificantly having regard to the weak position of the undertakings concerned on the market for the products in question. Appreciability can be appraised in particular by reference to the position and the importance of the relevant undertakings on the market for the products concerned. 41 It can be measured both in absolute terms (turnover) and in relative terms, comparing the position of the undertaking(s) concerned to that of other players on the market (market share). 42 With regard to the quantification of appreciability the Commission has published a Notice on agreements of minor importance which do not appreciably restrict competition under Article 81 (1) of the Treaty establishing the European Community (de minimis) 43, the so-called de minimis rule. It is considered that small and medium-sized undertakings (SMEs) are normally not capable of affecting trade between Member States. The relevant thresholds are defined in the de minimis Notice and the Commission Recommendation 2003/361/EC 44, which gets reviewed at regular intervals, so the latest version always needs to be checked. At present the criteria and thresholds are as follows: SME (< 250 employees and annual turnover not exceeding 50 million EUR or annual balance-sheet total not exceeding 43 million EUR) parties of the agreement: actual/potential competitors, holding a market share not exceeding 10% on any of the relevant markets parties of the agreement: not actual/potential competitors, where the market share of each does not exceed 15% on any of the relevant markets Modified in case: of agreements (whether between competitors or noncompetitors) in markets where other similar agreements exist and the cumulative effect of such agreements achieves over 30% or more of the market - then: the tolerated treshold is reduced to a maximum of a 5% market share

14 BUT: the quantitative criteria of the NOTICE do not apply to the so-called hardcore restrictions: agreements between competitors, where the objective is to fix prices, limit output or sales, or to allocate/share markets or consumers; agreements between parties (whether competitors or not) operating at a different level of production or distribution chain, with the object of restricting buyers abilitiy to determine their sale prices; restricting the territory into which the buyer may sell goods or services; restricting sales to end users by members of a selective distribution system at the retail level; restricting cross-supplies between distributors in a selective distribution system restrictions agreed between a supplier and buyer of components, limiting the suppliers ability to sell these as spare parts to others such restrictions are prohibited under all circumstances. sale of goods or services entered into by different suppliers or distributors (cumulative foreclosure effect of parallel networks of agreements having similar effects on the market), the market share thresholds under point 7 are reduced to 5%, both for agreements between competitors and for agreements between non-competitors. Individual suppliers or distributors with a market share not exceeding 5% are in general not considered to contribute significantly to a cumulative foreclosure effect (5). A cumulative foreclosure effect is unlikely to exist if less than 30% of the relevant market is covered by parallel (networks of) agreements having similar effects. 9. The Commission also holds the view that agreements are not restrictive of competition if the market shares do not exceed the thresholds of respectively 10%, 15% and 5% set out in point 7 and 8 during two successive calendar years by more than 2 percentage points. In detail, see: Excerpt of the de minimis Notice: (a) if the aggregate market share held by the parties to the agreement does not exceed 10% on any of the relevant markets affected by the agreement, where the agreement is made between undertakings which are actual or potential competitors on any of these markets (agreements between competitors) (4); or (b) if the market share held by each of the parties to the agreement does not exceed 15% on any of the relevant markets affected by the agreement, where the agreement is made between undertakings which are not actual or potential competitors on any of these markets (agreements between non-competitors). In cases where it is difficult to classify the agreement as either an agreement between competitors or an agreement between non-competitors the 10% threshold is applicable. 10. In order to calculate the market share, it is necessary to determine the relevant market. This consists of the relevant product market and the relevant geographic market. When defining the relevant market, reference should be had to the notice on the definition of the relevant market for the purposes of Community competition law(6). The market shares are to be calculated on the basis of sales value data or, where appropriate, purchase value data. If value data are not available, estimates based on other reliable market information, including volume data, may be used. 11. Points 7, 8 and 9 do not apply to agreements containing any of the following hardcore restrictions: 1. as regards agreements between competitors as defined in point 7, restrictions which, directly or indirectly, in isolation or in combination with other factors under the control of the parties, have as their object (7): 8. Where in a relevant market competition is restricted by the cumulative effect of agreements for the a. the fixing of prices when selling the products to third parties; 14

15 Etkin Rekabet Etmek: AB Rekabet Politikası > Avrupa Birliği Rekabet Politikası ve Rekabet Hukukunun Temel Prensipleri b. the limitation of output or sales; c. the allocation of markets or customers; 2. as regards agreements between non-competitors as defined in point 7, restrictions which, directly or indirectly, in isolation or in combination with other factors under the control of the parties, have as their object: a. the restriction of the buyer s ability to determine its sale price, without prejudice to the possibility of the supplier imposing a maximum sale price or recommending a sale price, provided that they do not amount to a fixed or minimum sale price as a result of pressure from, or incentives offered by, any of the parties; b. the restriction of the territory into which, or of the customers to whom, the buyer may sell the contract goods or services, except the following restrictions which are not hardcore: the restriction of active sales into the exclusive territory or to an exclusive customer group reserved to the supplier or allocated by the supplier to another buyer, where such a restriction does not limit sales by the customers of the buyer, the restriction of sales to end users by a buyer operating at the wholesale level of trade, the restriction of sales to unauthorised distributors by the members of a selective distribution system, and the restriction of the buyer s ability to sell components, supplied for the purposes of incorporation, to customers who would use them to manufacture the same type of goods as those produced by the supplier; c. the restriction of active or passive sales to end users by members of a selective distribution system operating at the retail level of trade, without prejudice to the possibility of prohibiting a member of the system from operating out of an unauthorised place of establishment; d. the restriction of cross-supplies between distributors within a selective distribution system, including between distributors operating at different levels of trade; e. the restriction agreed between a supplier of components and a buyer who incorporates those components, which limits the supplier s ability to sell the components as spare parts to end users or to repairers or other service providers not entrusted by the buyer with the repair or servicing of its goods; 3. as regards agreements between competitors as defined in point 7, where the competitors operate, for the purposes of the agreement, at a different level of the production or distribution chain, any of the hardcore restrictions restrictions listed in paragraph (1) and (2) above Art. 81 (2) EC Nullity Prohibited agreements and decisions as described before are automatically void. Other provisions that do not have the object or effect of restricting competition remain valid, but it is again a case by case analysis needed, if the rest of the agreement still makes sense. The consequences of Article 81 (2) EC are subject to national law Art. 81 (3) EC Exemptions Article 81 (3) enumerates the exemptions. Agreements otherwise covered by Art. 81 (1) can nevertheless be exempted from the prohibition if all criteria in Art. 81 (3) are met: the agreement must contribute to improving of production or distribution of goods or to promoting technical or economic progress it must allow consumers 45 a fair share of the resulting benefit (i.e. higher quality and/or lower prices) it must not impose on undertakings concerned restrictions which are not indispensable/unnecessary to the attainment of these objectives it must not afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question.

16 Since Council Regulation (EC) No 1/ took effect Article 81 (3) has direct effect and can be applied directly in the Member States without the obligation of prior notification to the European Commission. This regulation was adopted in order to give the European Commission priority competence to concentrate on the investigation and inspection of the big hardcore cartel cases with a particular Community dimension, leaving the relatively smaller cases to be dealt with by national competition authorities and courts. Commission and national competition authorities cooperate closely with each other in accordance with the provisions of the said regulation. 47 It is now in the companies responsibility to analize themselves their individual case according to Art. 81 (3). The burden of proof that the criteria of Art. 81 (3) are met and Art. 81 (1) is not to be applied lies on the undertakings. If it is in the public interest, the Commission can publish declaratory explanations to provide guidance in the case of new developments and practices that create uncertainty. But even more important are the group exemptions - the so-called block exemption regulations - that are issued either by the Council or the Commission. There exists a considerable number of group exemptions that exempt certain categories of business or types of agreements from the application of Art. 81 (1). Some block exemptions have a limited duration of validity until Among those are the ones on motor vehicles (Regulation 1400/2000) 48, insurance (Regulation 358/2003) 49, liner shipping companies (consortia) [meanwhile new one: Regulation 246/2009] 50, vertical agreements (Regulation 2790/1999) 51, specialisation agreements (Regulation 2658/2000) 52 and research and development agreements (Regulation 2659/2000) 53. After a review by the Commission they are either being extended for a longer period of time or will cease to be applied after the given dates. By virtue of Art. 29 of Council Regulation 1/2003 the Commission has also the option to withdraw the benefit of a group exemption on its own initiative. Also national competition authorities are authorised to do so. To give an overview of the existing documents that are of relevance, an (almost) exhaustive list - which constantly has to be checked in the internet for changes - has been attached in the last Section (see 2. Key documents, Chart of Important Sources of Information on Competition Issues). When drafting agreements companies should keep in mind that provisions to which the particular block exemption does not apply will be invalid if they infringe Art. 81 (1). However, a national competition authority or court could still individually apply Art. 81 (3), if there exist good reasons for application. The burden of proof would again be on the parties Fine-setting and Leniency Programmes In accordance with Art. 23 of Council Regulation No 1/2003 the Commission may impose fines of up to 10% of the total turnover in the preceding business year on each undertaking or association of undertakings that has been participating in the infringement. 54 In recent years the Commission s practice has a tendency to set higher fines within the limits of the given discretion. Therefore, the so-called Leniency Programme of the Commission 55 is of a high practical relevance. If after all, an undertaking has infringed EC competition rules and would have to expect a high fine when detected by the Commission, it still has the option to be the first to submit evidence to the Commission about its own infringement and that of the involved parties for the benefit of getting immunity from fines. Only the first whistleblower gets immunity, later singing birds can only expect reductions. This option exists until no other party of the collusive practice has been talking. The dangerous phase is shortly before the information is given, as the other parties to a cartel might get suspicious that one member of the cartel no longer participates wholeheartedly and then starts a running of all the companies to the Commission to be the first to tell. In particular, the new owners of a company may face the problem that their acquisition turns out to be a member of a year-long cartel. In these cases, it is highly recommended to take advantage of the Leniency programme, as the Commission has made it clear that the new owners will be held liable for the wrongdoings of a transferred undertaking regardless of the fact that the purchase was handled in good faith on behalf of the buyer. The Commission is referring parties that are held liable for infringements to exert their rights to compensation by bringing an action for antitrust damages against the seller before national courts

17 Etkin Rekabet Etmek: AB Rekabet Politikası > Avrupa Birliği Rekabet Politikası ve Rekabet Hukukunun Temel Prensipleri 1.2. Article 82 EC With regard to the similarities with article 6 of the Turkish Act on the Protection of Competition, Act No. 4054, Article 82 EC shall be quoted: ArtIcle 82 EC Any abuse by one or more undertakings of a dominant position within the common market or in a substantial part of it shall be prohibited as incompatible with the common market in so far as it may affect trade between Member States. Such abuse may, in particular, consist in: a. directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions; b. limiting production, markets or technical development to the prejudice of consumers; c. applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; d. making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts. Art. 82 EC - Abuse of Dominance if all conditions are met: undertaking in a dominant position on the relevant market abuse affecting trade between Member States In a dominant position In the case United Brands 57 the European Court of Justice defined a dominant position as: A POSITION OF ECONOMIC STRENGTH 58 ENJOYED BY AN UNDERTAKING WHICH ENABLES IT TO PREVENT EFFECTIVE COMPETITION BEING MAINTAINED ON THE RELEVANT MARKET BY GIVING IT THE POWER TO BEHAVE TO AN APPRECIABLE EXTENT INDEPENDENTLY OF ITS COMPETITORS, CUSTOMERS AND ULTIMATELY OF ITS CONSUMERS. The criteria by which the dominant position of an undertaking is assessed are: the market structure, the undertaking s structure, performance and its resources and the undertaking s conduct. The assessment will have to take into account a multitude of factors: the number of dominating undertakings, the size of their market share, the relative size of the market shares of the leading undertaking s rivals, if there exists a surplus production capacity elsewhere, if the market share of the leading company is stable, barriers to entry into the market for (potential) competitors, maturity and dynamism of the market, peculiar product characteristics by which consumers are bound to the product, existence of reasonable alternative sources of supply. Of importance is also, if the undertaking has a technological lead or other commercial advantages such as a trademark or a strong distribution network, if it has superior access to raw materials, if it is also present in other markets through subsidiaries and availability of human and financial resources. Further, it has to be examined if the undertaking can act in disregard of competitors on the market, its ability to set or control prices or its ability to contain or limit the number of competitors Undertaking The definition of an undertaking in Article 82 EC is identical with that given with regard to Art. 81 EC (see ). Some explanatory guidelines of the Commission explicitly refer to both articles at the same time. The only difference to be made is that Article 82 applies also to a single undertaking or more undertakings.

18 In Hoffmann-La Roche 59 the European Court of Justice held that a very large market share is an indicator for a dominant position: THE EXISTENCE OF A DOMINANT POSITION MAY DERIVE FROM SEVERAL FACTORS WHICH, TAKEN SEPARATELY, ARE NOT NECESSARILY DETERMINATIVE BUT AMONG THESE FACTORS A HIGHLY IMPORTANT ONE IS THE EXISTENCE OF VERY LARGE MARKET SHARES. and ALTHOUGH THE IMPORTANCE OF THE MARKET SHARES MAY VARY FROM ONE MARKET TO ANOTHER THE VIEW MAY LEGITIMATELY BE TAKEN THAT VERY LARGE SHARES ARE IN THEMSELVES, AND SAVE IN EXCEPTIONAL CIRCUMSTANCES, EVIDENCE OF THE EXISTENCE OF A DOMINANT POSITION On the relevant market According to the findings of the Community court in Continental Can 63, the Commission has the obligation to analyse an undertakings market power in two steps: first, by defining the relevant market and second, by assessing the undertakings dominance on that market. The ECJ held: 32 FOR THE APPRAISAL OF DOMINANT POSITION, THE DEFINITION OF THE RELEVANT MARKET IS OF ESSENTIAL SIGNIFICANCE, FOR THE POSSIBILITIES OF COMPETITION CAN ONLY BE JUDGED IN RELATION TO THOSE CHARACTERISTICS OF THE PRODUCTS IN QUESTION BY VIRTUE OF WHICH THOSE PRODUCTS ARE PARTICULARLY APT TO SATISFY AN INELASTIC NEED AND ARE ONLY TO A LIMITED EXTENT INTERCHANGEABLE WITH OTHER PRODUCTS. Nevertheless also a 39,7% market share can be sufficient to assume a dominant position because of the relatively small market shares of the closest competitors. 60 But market share in itself is not necessarily an indication of dominance, other factors influence the assessment considerably. If, for instance, the market is dynamic, a price increase of the biggest company on the market can lead to the entry of new competitors that offer more competitive prices. It is then also a question if there are barriers for potential new competitors to enter the market easily. Obstructing can be trademarks belonging to the market leader or very high investments needed to be able to enter the market. 61 The relevant market is determined by looking a) at the product market and b) at the geographic market. a) Product market: The limits of the product market are defined by the demand substitutability concerning the product and the supply substitutability concerning the production. The Commission has issued a Notice on the definition of the relevant market for the purposes of Community competition law 64 that gives the following definition: If a dominant position is held by more than one undertaking, the undertakings exert a so-called shared, joint or collective dominance. In Compagnie Maritime Belge 62 the Community court held: 36 It follows that the expression one or more undertakings in Article 86 [now 82, comment of the author] of the Treaty implies that a dominant position may be held by two or more economic entities legally independent of each other, provided that from an economic point of view they present themselves or act together on a particular market as a collective entity. That is how the expression collective dominant position, as used in the remainder of this judgment, should be understood. Relevant product markets are defined as follows: A relevant product market comprises all 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. Demand substitutability (concerning the product) according to: functional characteristics price intended use 18

19 Etkin Rekabet Etmek: AB Rekabet Politikası > Avrupa Birliği Rekabet Politikası ve Rekabet Hukukunun Temel Prensipleri Example for a relevant market definition with regard to consumer demand: In United Brands 65 the European Court of Justice drew the conclusion that the product market was limited to bananas only, as they could not be substituted by other fresh fruits. A banana has kind of paper, if their machines have additional capacity to expand their output and if they can fulfil the same regulatory provisions that are in effect in this region. If the answer is NO, it means that there is no supply substitutability for high quality paper by other competitors and the relevant market is limited to the supply by company A. CERTAIN CHARACTERISTICS, APPEARANCE, TASTE, SOFTNESS, SEEDLESSNESS, EASY HANDLING, A CONSTANT LEVEL OF PRODUCTION WHICH ENABLE IT TO SATISFY THE CONSTANT NEEDS OF AN IMPORTANT SECTION OF THE POPULATION CONSISTING OF THE VERY YOUNG, THE OLD AND THE SICK. It also held that bananas are available throughout the year, whereas other fresh fruit mainly are sold on the market during summer months. Fresh apples are available for a longer period of time, but they are not so sweet and easy to handle as bananas. Oranges are available only during the winter months and also are more difficult to handle. So apples or oranges could by their functional characteristics, their intended use and price depending on the season be regarded as different and therefore be no real substitutes for bananas (no demand substitutability of bananas by other fruits). Supply substitutability (concerning the production) according to: characteristics of production technology presence of capacity possibility of undertakings to expand output barriers to access to production technology or regulatory barriers Example for a relevant market definition with regard to supply availability: If within a region the production of high quality paper that can be used for fashion magazine production is limited to a certain amount because the production capacities and production sites are few, and the leading paper producing company A has the only (limited) capacities to produce this sort of high quality paper in the region, the question would be if there are other high quality paper producing companies that from outside the region could step in as competitors to compensate for the price increases demanded by company A. The question would then be, if there are other companies that have the same production technology to produce this b) Geographic market: The Commission s Notice on the relevant market states further: 8. Relevant geographic markets` are defined as follows: The relevant geographic market comprises the 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 areas`. The geographic market is assessed by the criteria: market integration, cultural/linguistic differences, regulatory barriers. Examples: If for religious reasons a certain kind of meat is not eaten by the population of the region, the geographic market for this meat is limited to those regions where the religion does allow to eat this meat (cultural differences). If a certain kind of liquor is only produced in a particular region as a regional specialty the geographic market is limited to this region, etc. 9. The relevant market within which to assess a given competition issue is therefore established by the combination of the product and geographic markets Abuse Being in a dominant position as such is not prohibited, but the abuse of it. As an abuse of a dominant position are considered those practices that are different from those governing normal competition in products or services based on trader s performance. 67 It is not necessary that the abuse is ill will

20 or intentional which as such would be in any case difficult to prove. In Hoffmann-LaRoche 68 the European Court of Justice held: THE CONCEPT OF ABUSE IS AN OBJECTIVE CONCEPT RELATING TO THE BEHAVIOUR OF AN UNDERTAKING IN A DOMINANT POSITION WHICH IS SUCH AS TO INFLUENCE THE STRUCTURE OF A MARKET WHERE, AS A RESULT OF THE VERY PRESENCE OF THE UNDERTAKING IN QUESTION, THE DEGREE OF COMPETITION IS WEAKENED AND WHICH, THROUGH RECOURSE TO METHODS DIFFERENT FROM THOSE WHICH CONDITION NORMAL COMPETITION IN PRODUCTS OR SERVICES ON THE BASIS OF THE TRANSACTIONS OF COMMERCIAL OPERATORS, HAS THE EFFECT OF HINDERING THE MAINTENANCE OF THE DEGREE OF COMPETITION STILL EXISTING IN THE MARKET OR THE GROWTH OF THAT COMPETITION. Insofar, it is according to jurisprudence sufficient that the conduct is just likely to influence the structure of the market through recourse to methods different from those that condition normal competition on the basis of performance to assume abuse. We can differentiate three different types of abuse: exploitative abuse: harming partners with whom the company deals; exclusionary abuse: excluding partners from (advantageous) offers/supply; structural abuse: acquiring or merging with a competitor and thereby reducing competition and strengthening the dominant position Affecting trade between Member States The explanations given in the context of Article 81 (see ) also apply to Article 82. The Commission has issued a Notice on the concept of the effect on trade that summarizes jurisdiction as well as practice and refers to both articles Merger Rules The purpose of EC merger control is to ensure that competition is not damaged as a result of reorganisation. It is meant to permit effective control of all concentrations from the point of view of their effect on the structure of competition and, at the same time, to protect consumers against the effects of monopoly power (such as higher prices, lower quality, less innovation). The EC Merger Regulation 139/ was adopted to provide a one-stop-shop for merger control on EU level in a speedy procedure. It foresees a mandatory notification procedure and a competition-based appraisal by the European Commission. The scope of application are all kind of concentrations in the meaning of mergers, acquisitions of sole control, acquisitions of joint control and joint ventures. The determining factor for the application is, if there is a change of control on a lasting basis in the structure of the companies. It is not necessary that the seat of a company or its principle fields of activity are placed in the European Community. It is sufficient if a company has substantial operations in the European Community. In such a case mergers with a Community dimension - depending on the worldwide and European annual turnovers of the merging parties - fall under the exclusive jurisdiction of the European Commission. Examples of prohibited behaviour 70 are imposing unfair prices or other trading conditions (too high or predatory prices) limiting production, markets or technical development to the prejudice of consumers making conclusion of contracts dependent on acceptance of unjustified additional obligations (e.g. tying) any other unfair practice, condition or practice (e.g. boycott) applying different conditions to similar transactions (e.g. prices, rebates, delivery times or costs), not if objectively justified A boykott (refusal to deal) is abusive if there is no objective reason, the refusal is likely to eliminate all possibilities for competition, there is no actual or potential substitution. The regulation covers mergers where two or more independent undertakings amalgamate into one new undertaking and cease to exist as separate legal entities, 73 where an undertaking is absorbed by another undertaking, the latter retaining its legal identity while the former ceases to exist as a legal entity, 74 where a merger occurs de facto when combining activities of previously independent undertakings results in the creation of a single economic unit. 75 When concentrations meet the tresholds of the Merger Regulation (MR) they fall into the exclusive competence of 20