Bài tập môn US antitrust and EU competition law

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A The main difference between anticompetitive agreement and collective dominance

Anti-competitive Agreement (ACA)

Abuse of Dominant position (ADP)

Nature

An anti-competitive practice form as

an agreement (whether written, oral

or the conduct) between 2 or more independent competitors

An anti-competitive practice, but not

an agreement, just the undertakings have illegal and harmful exploitations

of the domination position to eliminate the competitors

Intention An agreement  Bilateral /

Multilateral

A Conduct  Unilateral

Number of

parties

Must be at least 2, no need to have monopoly power

Can be one only, but it must have the monopoly power

Content of the

practice

+ Price fixing.

+ Market division / source of supply division.

+ Tying

Form

Open or Secret (in secret form: it is the collusion, or Cartel) agreement.

Can be in written, oral or implied

A conduct

Not always illegal per se (Không mặc định là phạm pháp, cần xem xét ngoại lệ = Can have exclusion and open regulations allow to do)

Except Cartel: Always illegal per se

Always illegal per se (Mặc định là phạm pháp, không cần xem xét, cứ thế

mà phang = No exclusion, always illegal at any cases)

No need to determine the market share

Need to determine the market power

Exemption Regulated in Article 101.3 TFEU No exemption

Type Horizontal (Separate, independent

parties) or Vertical.

Vertical Impose to the other party in

Agree to do the same conduct to the

3rd party

transaction

Punishment Same as Cartel

B Đề thi của lớp CLC-40A

I Are those following statements correct? Why

1 False Exemption for agreements between small companies, which together holding no more than 10% market share, is only applied in EU competition law (de minimis notice)

2 False Acquisition is an undertaking/firm (A) acquires more than 50% of shares of another undertaking/firm (B), which make the acquired firm/undertaking(B) becomes the subsidiary of the acquiring firm/undertaking

3 False DDD is a form of structural remedy: dissolve/divestiture/divore

II Compare “excessive pricing” and “predatory pricing”

Criteria Excessive pricing Predatory pricing

Type of act Exploitative abuseAbuse the dominant position Exclusionary abuseAttempt to monopolization

Act Raise the price of products unreasonably Lower the price below the reasonable level Effect

Cause damage to customer The competitor has to

leave the market New competitor may join the market

III Exercise

I Calculate the turnover of:

 C, D, E, F (Article 5.5 EU Merger regulation 2004)

 A, X, Y, 50% of Z (Article 5.2)

II Will announce if satisfy all requirements in Article 1.3

C Đề thi của lớp CLC-38B

I Are the following statements correct? Why?

1 False, also the one firm/undertaking which holds the dominant position/monopoly

2 False According to the Article 5.2, only the turnover of parent companies of buyer undertaking is taken to account for calculation of worldwide combined…

3 False Directives are binding only on the member states to whom they are addressed, which can be just one member state or a group of them

C

D

E

F

A

W

z

X

ACQUIRE

II Compare US antitrust and EU competition law on remedies

Same:

 Both have conduct and structural remedies

 Apply to punish the anti competitive acts, abusing the dominant position, attempt to

monopolize

Criteria US antitrust remedies EU competition law remedies

Legal base US code title 15 section 1 and 2 EU guidelines on the method of setting

fines

Monetary damages  Fines: Maximum $100M for

corporation, $1M for a person

 Compensation: treble damages (3 times the real damage), awards to the victim(s)

 Fines: maximum 10 % of the total turnover in the preceding business year of the undertaking or association of undertakings participating in the infringement

 Compensation: based on real damage, awards to the victim(s)

Prisonment Can up to maximum 10 years No

III Exercise

1 What’s this infringement’s name? Why?

IRAC formula:

 Issue: What type of infringement that company A conduct

 Rule: Article 102 TFEU, Article 80, 81, 82 EU guidance on abusive conduct by dominant undertakings

 Analyze:

o Company A is in dominant position as the supplier in the upstream market and being a competitor in the downstream market

o The refusal relates to a product or service that is objectively necessary to be able to compete effectively on a downstream market:

A is the supplier for the downstream market

o The refusal is likely to lead to the elimination of effective competition on the downstream market: A raised the price of inputs

in the upstream market so high and lowered its prices to its to

customers in the downstream market, which can harm the other competitors in lower market, affect the competition

o The refusal is likely to lead to consumer harm: no information

 Margin squeeze

2 Company A, if doesn’t agree with the decision of the Eu Commission, it can lodge

an appeal to the EU general court

D Đề thi lớp CLC-38A

I Are the following statement correct? Why

1 False

Antitrust bills are created and drafted by the senate or the house representatives

2 False

The acquired firm/undertaking become the subsidairy of acquiring

firm/undertaking

3 False

Structural remedies in US antitrust and EU competition law require some form of structural change on the part of the party or parties to whom the measures are directed

Not in order to seize any asset of the infriged undertaking

II Exercise

1 Discrimination