EU Competition law 反垄断法
2021-10-07 17:11:06 1 举报AI智能生成
课堂笔记
作者其他创作
大纲/内容
of public regulation
direct or necessary consequence
1 public regulation
not limited to legally binding agreement
Expressed intetion
Oral or in writing
Not purely one-sided behavior
two or more hae expressed a common intention to act in a particular way on the market
Agreement
eg. meeting
connection
Common willingness or consensus tocooperate rather than compete (the connectioneliminates or significantly reduces uncertaintyabout future behavior)
Subsequent market behavior (reversed burdenof proof)
Concerted practices 协同行为
Defense
dealer pays the invoices without protest
recommended retail price
Agreement or concerted practice?
Examples
Economic activities regardless legal status
internal agreement or employee
consumer is not an economic entity- not reselling but for its own use
exceptions
3 between independent undertakings
Cartel agreement to divde market by two+ competitors even it's 0.1% marketshare
Passive sales not allowed in agreement
Resale price maintenance
nature to harm competition
object
effect
eg: distributor says to obide the receommendations
over 30% anti-competitive
below 30% OK
4 anti-competitive: illegal to object or effect to restrict competition
Object
yes
below 10% - horizontal agreement(between competitors)
15% - vertical agreement (between non-competitors)
affect competition
Qualitative
no
5 Quantitative/qualitative restrictive
new products or higher quality
1.promote technical or economic progress
2 benefit consumers
3 indispensable
4 no afford to eliminate competition - sufficient competition left
6 Efficient defence / Indiviual exemption
block exemptions only in EU
7 Block exemption集体豁免
Quickly
Clearly unambiguously
without disclosure of future strategy info
Evidence that sebsequent behavior is determined independtly
DistanceingRed wine rule on your face
Defense
a
Conclusion
Probihition against anti-competitive agreements垄断协议
One
2 undertaking
>50% dominant
eg: British airway dominant - below 30%
=25-40?
act by same behavior but no agreement
joint/collective dominant by 2+ companies
market share
barries to enter and expansion
countervailying buyer power
Temporal scope
3 dominant postition
harms consumers/competitor - damage competition
can be exclusionary or exploitative 排他性、剥削
strategy to eliminate a competitor
Too high prices (excessive pricing)
Too low prices (predatory pricing)/欺负弱小压榨
Margin squeeze
Discrimination
Selective pricing
Exclusivity
Rebates and bonuses
Refusal to supply
Tying/Bundling
Too short notice periods
Vexatious litigation
Denegration
Payment for services not provided
Termination notices
Too short notices
Enforcement of rights
English clause
Requirement to use original parts to maintain warranty
Eg: low price than production
4 Abuse
cost saving-quantitative
new products or higher quality-qualitative
improving the production/distribution/ to promote technical or economic progress
consumer benefit
not indispensable
no chance to eliminating effective competition
Efficiency def
meeting competitor price to own regular customer
objectively necessary
eg chair company
Switch production
profitable for one year
SSNIP Price 5-10%
2 Prohabition against abuse of dominance滥用市场支配地位
Supply-side substitution:[S]uppliers are able to switch production to therelevant products and market them in the shortterm without incurring significant additionalcosts or risks in response to small andpermanent changes in relative prices.
Demand-side substitution:[W]hether the parties' customers would switchto suppliers located elsewhere in response toa hypothetical small (in the range 5 % to 10 %)but permanent relative price increase in theproducts and areas being considered 17)
概要
product
Demand-side substitution:[W]hether the parties' customers would switchto readily available substitutes in responseto a hypothetical small (in the range 5 % to 10%) but permanent relative price increase in theproducts and areas being considered
geographical
lost cost + risk free
eg: Paper company
eg: M&A acqusition?
Definition: what will customer/other company do?
电力公司
eg
Market
active on the Same relevant market
geographical market
Switch productoin
market new products 1 year
no significant addional cost or risks
Supply-side
Actual
不论你是否想进入新市场，只基于你的条件判定是否是潜在competitor，即使你不想加入
sub-contractor
objective assesment
Potential
Competitor
anti-competitive clauses - null & void automatically
Google $4billion exclusivity
Fines to 10% worldwide group turnover
Negative press coverage
ask for leniency in many countries
Cartel agreement worldwide
Leniency从宽处理
Sanctions
Rule
OK
not for punish
not dominant
借口 - 因为客户想付高价，产品好，
如果价格太高，会有竞争者进入市场
合理原因？港口地理位置原因地段贵
eg: 香蕉公司收费7%高，因为在其它地区亏损了，需调查原因
比价的时候，需要对比同类的对比，不能比无法比的价格，如list price，不是实际销售价格
higher than what market normally is? 除非有高收费的原因
Significant difference between production cost & sales price
eg 某药企？提高价格20倍，后有新公司进入，竞标中价格极低，利用支配地位提价是abuse
eg 供电公司只有一家-consumer cant switch to other supplier
price is unfair in itself / compared to competing proucts
Dominant - abuse if charing price ...exceeed
too high?
not for reward
1
eg: 椅子的固定材料费，随数量增加
Abuse if selling at average variable cost
AVC + fix cost 如人工
Not abuse if at over average total cost
abuse if lead to a loss
dominant
too low
ok
no for punishing/reward
not D
all facts including negotiation power
2. place them into competitive disadvantage
stragic customer with same volume different price- one company is marketing to entering to a market vs the other one with no marketing activities
谁得到最高回扣，我们本地的航空
eg.
eg 邮局对在城市和周边地区收取不同费用
Abuse if discriminating between customers placing themat a competitive disadvantage
Abuse only based on nationality
Strategy not abuse
selective price cut
diff price dif customer
Dominant in the upstream market
Margin squeeze
restrict competition
Internal vs external
Not dominant
根据一次性数量给与折扣，OK，但需cover cost
根据某段时间的量或未来的购买量给折扣，不可以
individual vs not total purchase (future purchase)
2 OK - Quantity discount
Abuse
3 Exclusivity discounts
达到一定数量，所有都享有折扣
达到一定数量，只有到达的才享有折扣
Incremental rebate
4. others discounts
issues for different type of products bundling
mixed bundling
conclusion
Dominant
Rebates + bonus=ilegal
customers required to purchase products together
如对手不能提供捆绑两产品，要分析折扣，是否高于两者任何一个production cost
block exempt
小于30% ok
lead to foreclosure
price increase
Bundling products
domiance? not relevant
Restrictions when we buy?
Pricing of products & service
Restricting sales to end-users
Restricting sales to other distributors
03. Restricting to/purchases from other distributors to/purchases from other distributors within the system
outside the system
06. Non-compete clause (exclusivity)
07. Price restrictions
wholesaler to end user
09. Information exchange
Overview of typical restrictions
Purchase prices: Normally legal
Binding resale prices:
Minimum resale prices
Object infringement
Recommended resale prices:
Maximum prices:
exclusivity (non-compete clause)
price
Passive
internet sales
object
active sales
object or effects restriction
Re-export ban on the supply ofproducts outside the EU to penetrate
Sale by wholesale to end-users
Active sale in exclusive distributionarea if necessary for penetration
Sale to unauthorized members inselective distribution
Exceptions
sales restrictions
Exception
sales to retailer without restrictions
Traditional
Active sale in exclusive distributionarea if necessary for penetration (case
Definition: Sales to a dealer who is the only oneallowed to make active sales in that area and/orcustomer group
Sole
Selective
Distribution model
Legal framework
Binding resale prices/min resale prices禁止限定最低价或某特定价
建议转售价或最高价，不一定object infringement，但可能effect infringement
Price
依个案具体分析
Dominant company CAN'T
non-compete clauses竞业禁止条款-排他性
doesnt nothing by supplier
Passive sales-object
EU allow active sales restriction
active sales restriction - object or effects
Traditional?
Sole distribution
不能限制转售价格不能限制被动销售
Vertical agreement restrictions
Distribution agreement or concerted practice
Between two or more undertakings
Vertical block exemption regulation
Draft vertical block exemption regulation
Selecting the right distribution system
Can we refuse to supply products/services to customers?
Can a customer decide which Grundfos company to conduct business with?
Can we restrict cross-border warranty claims
Distribution of products产品分销
With competitors (both are manufacturers or both are distributors)
With non-competitors
With competitors (one is manufacturer and distributor; other only distributor)
With an employee who switched from a competitor
If a mistake has been made
Information exchange
Grundfos competes with the partner at the manufacturing level
Grundfos competes with the partner at the distribution level
partnership agreement
EU Competition law
职业：legal counsel
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