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References
E.C. Commission v. France (Case 232/78) [1979] E.C.R.2729.
Directive 70/50, [1970] O.J. L13/29.
R. v. Pharmaceutical Society, ex parte API (Case 266/87) [1989] E.C.R.1295.
But do not have an identical effect to that of Article 28; P.B. Groenveld BV v. Produktschap voor Vee en Vlees (Case 15/79), [1970] E.C.R.3409.
Thus, for example a restriction imposed by the U.K. on the imports of pornographic materials was considered by the European Court justified, in R. v. Henri (Maurice Donald) (No.1) [1979] 2 C.M.L.R.495, H.L., since the materials could not legitimately be manufactured within the U.K. On similar lines was the decision of E.C.J. in Conegate Ltd. v. Commissioners of Customs and Excise (Case 121/85), [1986] E.C.R.1007, which involved the import of life-size inflatable dolls in the U.K.
Public policy is generally interpreted strictly, Leclerc v. Au Blé Vert (Case 229/83), [1985] E.C.R.1, where an attempt by the French government to fix minimum fuel prices according to French refinery costs on the basis of public policy was rejected.
Commission v. United Kingdom (Case 40/82), [1982] E.C.R.2793; an unsuccessful attempt by the U.K. to ban all imports of poultry on the basis of preventing the spread of a desease which affected poultry. See also Schumacher v. Hauptzollamt Frankfurt-am Main-Ost (Case 215/87), [1989] E.C.R.617.
Rewe-Zentrale AG v. Bundesmonopolverwaltung für Branntwein (Case 120/78), [1979] E.C.R.649.
The E.C.J. has found that laws introduced by one country preventing particular advertising/sale promotion methods, such as offering free gifts to buyers of goods (encyclopaedias), were in breach of Article 28; Oosthoek’s Uitgeversmaatschappij BV (Case 286/81), [1982] E.C.R.4575. Similarly, laws introduced by one country preventing the use of the name ‘Clinique’ on the basis of protecting consumers being misled by the medical properties associated with the word ‘clinique’ were found to be in breach of Article 28; Verband Sozialer Wettbewerb eV v. Clinique Laboratories SNC (Case C-315/92), [1994] E.C.R. I-317.
See, for example, Commission v. Denmark (Case 302/86), [1988] E.C.R.4607, which related to laws requiring a proportion of imported re-usable containers of liquid beverages to be returned to manufacturers. Although, the Court found that the proportion of imported beverages in non-approved re-usable containers was set by these laws at too low a figure, i.e. disproportionate, it seemed willing to accept the utility of such laws.
Including the Restrictive Track Practices Act 1976, the Resale Prices Act 1976, and the Competition Act 1980.
The office of Director of Fair Trading was abolished by s.2(2) of the Enterprise Act 2002.
In addition to these exemptions, there is a number of agreements which are excluded from the operation of Chapter I; see further Schedules 1–4 of the Competition Act 1998.
Crehan v. Inntrepreneur Pub Co. CPC [2004] EWCA Civ. 637; C leased a public house from D, under a lease which included a ‘beer tie’ term, i.e. to buy a minimum quantity of beer from D, and pay the price specified by D. C’s business was in financial difficulties and he surrendered the lease, owing money to D in relation to unpaid purchases of beer. D claimed for these unpaid purchases and C counter-claimed that the terms of the lease, in particular the ‘beer tie’ provision, was in breach of Article 81 of the E.C. Treaty. The Court of Appeal awarded C damages as it found that the ‘beer tie’ provision infringed Article 81 and it did not fall within the Council Regulation 1984/83 (‘the Block Exemption’) an exemption relating to ‘beer supply agreements’. It must be noted that in this case a Reference to the European Court of Justice was made, inter alia, on the issue of whether an individual has rights under Article 81 when he/she is party to the infringing agreement. This was in issue arising in English law, since parties of an illegal (void) agreement are not entitled to damages even if ‘innocent’. The E.C.J. clearly stated that National Courts must safeguard the rights of individuals in relation to Articles 81 and 82, and that parties to such anti-competitive agreements could claim damages (Case C-453/99, O.J. C 317, 10/11/2001, p.4).
Dominance is considered in terms of whether the undertaking concerned is able to behave to an appreciable extent independently of its competitors, customers and ultimately of its consumers; United Brands Company and United Brands Continentaal B. V. v. Commission of the European Communities (Case 27/76), [1978] ECR 207.
However, the Competition Act 1998 provides for some exclusions from the operation of Chapter II; for a list of these, see Schedules 1–4 of the Act.
Bearing in mind the similar provisions of the Competition Act 1998, supra, p.191, it will be seen that undertakings may be subject to both Articles 81 and 82 of the Treaty of Rome, as wells as Chapter I and Chapter II prohibitions under the Competition Act. For the relationship between E.C. and national competition law see further Council Regulation (EC) No. 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, O.J. L1, 04/01/2003, p.1.
Indeed, it may now be considered settled that European Community law is superior to all provisions of national law, whether legislative, administrative, jurisdictional, or constitutional; Flaminio Costa v. ENEL (Case 6/64), [1964] E.C.R.585; Equal Opportunities Commission v. Secretary of State for Employment [1994] 1 W.L.R.409; R. v. Secretary of State for Transport, ex parte Factortame (Case C-213/89), [1990] 3 C.M.L.R.867; Wachauf (Case 5/88), [1989] E.C.R.2609; Internationale Handelsgesellschaft GmbH v. Einfuhr und Vorratsstelle fur Getreide und Futtermittel, (Case 11/70), [1970] E.C.R.1125.
SA Hercules Chemicals NV v. Commission [1991] E.C.R. II-1711, C.F.I.
Volkswagen A.G. v. Commission of the European Communities (Case C-338/00), [2004] 4 C.M.L.R.7; Volkswagen was fined approximately £59m. for breach of Article 81(1), as it had entered into agreements with some of its Italian dealers whereby the dealers were prevented to sell V.W. cars to both consumers and dealers from other E.C. States. The fine took into account V.W.’s abuse of bargaining power and the number of years during which this malpractice was operated.
For example, by Commission Regulation 1475/95 of June 28, 1995, on the application of Art.81(3) of the E.C. Treaty to certain categories of motor vehicle distribution and servicing agreements, car dealership contracts are, subject to certain conditions, exempted from Article 81(1) of the E.C. Treaty.
O.J. L 336, 29/12/1999, p.21.
Cf. Bundesverband der Arzneimittel-Importeure EV and the Commission of the European Communities v. Bayer AG (Joined Cases C-2/01 P and C-3/01 P) [2004] E.T.M.R. 100 ECJ, where a particular drug was manufactured by Bayer, who sold it through their European distributors at considerably variable prices. In fact, the sale price of the drug in France and Spain was about 40% cheaper than in the U.K. Consequently, French and Spanish wholesalers exploited this price difference by ordering larger quantities of the drug from Bayer and exporting the surplus to the U.K. Bayer subsequently, adopted a policy whereby a quota was imposed on these wholesalers based on their sale figures of the previous year. The European Commission decided that this practice was an infringement of Article 81(1) since Bayer in effect imposed an export ban thus hindering parallel trading. However, the E.C.J. held that as the European Commission based its case on Article 81(1), an agreement by the wholesalers was also required, which, the E.C.J. thought the Commission had failed to show it existed. The wholesalers’ continuation of selling the drug was not adequate evidence that they had acquiesced to Bayer’s practice.
O.J. C 368/13, 22/12/2001. This notice replaces the Notice on agreements of minor importance published in O.J. C 372, 09/12/1997.
This factor must be distinguished from ‘appreciably affecting trade’. If this is the criterion, then according to the Annex to Commission Recommendation 96/280/E.C, O.J. L 107, 30/04/1996, a small undertakings are: (i) those with fewer than 250 employees, and either (ii) have an annual turnover up to €40m, or (iii) have an annual balance sheet total up to €27m.
As to what is ‘actual or potential competitor’, see paragraph 9 of the Commission’s notice ‘Guidelines on the applicability of Article 81 of the E.C. Treaty to horizontal cooperation agreements’, O.J. C 3, 06/01/2001.
Viho Europe BV v. Commission (Case C-73/95P), [1996] E.C.R. I-5457.
Consten S.A. and Grundig-Verkaufs GmbH v. E.C. Commission (Cases 56 and 58/64), [1966] E.C.R.299.
Cf. the more recent case of Glaxo Group Ltd. v. Dowelhurst Ltd. [2003] EWHC 110, where pharmaceutical products were re-packaged/re-labelled on being imported into the U.K. from other E.C. States. C, the trade mark proprietor, claimed trade mark infringement It was held that there was an irrebuttable presumption that re-packaging the goods is prejudicial to that subject-matter. On the other hand this presumption did not apply to re-labelling of the goods. Therefore, C could prevent D from re-packaging the medicines but not from re-labelling them.
It could be said that a concerted practice is conduct which takes the form of informal coordination between undertakings; Suiker Unie v. Commission (Cases 40–48, 50, 54–56, 111, 113–114/73), [1975] E.C.R.1663.
Imperial Chemical Industries Ltd. v. E.C. Commission (Dyestuffs) (Case 48/69), [1972] E.C.R.619.
Parke Davis & Co. v. Probel and Centrafarm (Case 24/67), [1968] E.C.R.55.
Thus in Deutsche Post (Case COMP/35.141), Decision 2001/354/EC, O.J._L 125, 05/05/2001, p.27, the Commission ruled that the German Post Office had infringed Article 82 between 1974 and 2000 by, inter alia, using revenue from its profitable letter-post monopoly to finance a strategy of below-cost selling in parcel services, which were open to competition. In respect of this and some other Article 82 infringements, the German Post Office was fined a sum equivalent to £14,500,000.
Michelin, (Case COMP/E-2/36.041/PO), Decision 2002/405/EC, O.J. L 143, 31/05/2002, p.l.
The Commission’s Decision was affirmed by the European Court of First Instance; Manufacture Française Des Pneumatiques Michelin v. Commission of the European Communities (Case T-203/01), [2004] 4 C.M.L.R.18, C.F.I.
Virgin/British Airways, (Case IV/D-2/34.780), Decision 2000/74/EC, O.J. L 30, 04/02/2000, p.1; British Airways was found infringing Article 82 by operating various incentive and commission schemes for certain travel agents by rewarding loyalty to such agents, and discriminating between travel agents, thus partitioning the U.K. market. A fine was imposed of approximately £4 million. This also seems to be the case under different jurisdictions, e.g. in 2005 Japan’s Fair Trade Commission found that Intel, the microprocessor manufacturer, violated competition rules by offering rebates to five PC makers on the condition that they agreed not to purchase or limit purchases of chips made by AMD or other rivals.
NV Nederlandsche Banden Industrie Michelin v. Commission of the European Communities (Case 322/81), [1983] E.C.R.3461.
Europemballage Corporation and Continental Can Company Inc. v. Commission (Case 6/72), [1973] E.C.R.215; X was an American company producing packing materials such as fish tins, meat tins, and in 1969 it (X) took control of company Y which was the largest German producer of packaging. In 1970 X acquired a majority holding of company Z which was one of the few leading European (Dutch) manufacturer of packing materials. In the opinion of the E. Commission the situation arising from this concentration within the market of light packing in the North-West region of the Common Market constituted the necessary conditions for an abuse of dominant position within Article 82 (then 86). However, the finding of the Commission was set aside by the European Court on a technical ground that the E. Commission had failed to define which market was abused, whether it was that of meat tins, fish tins etc. However, the important point is that the Court stressed that Article 82 would have been infringed on a definition of the market abused so that the mergers would have been void.
Deutsche Gremmophon v. Metro (Case 78/70), [1971] E.C.R.487.
Parke Davis & Co. v. Probel and Centrafarm (Case 24/67), [1968] E.C.R.55.
Cf. Intel Corporation v. VIA Technologies Inc and others [2002] EWHC 1159 (Ch.); the proprietor of an intellectual property right had the right to refuse to license, but the refusal might be an abuse if, amongst other circumstances, a manufacturer decided no longer to produce spare parts for a model which was still in wide circulation. It might also be an abuse if reliance on the right prevented the appearance of a new product, which was not offered by the holder of the right and for which there was a consumer demand, and there was no justification for the refusal of the licence, and the holder of the right reserved to itself the market in the product by denying access to the material which was indispensable to the creation of the product. However, the refusal to license would be abusive conduct only in exceptional circumstances.
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(2006). Competition Law. In: Principles of Law Relating to International Trade. Springer, Boston, MA. https://doi.org/10.1007/0-387-30699-4_8
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