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June 2010

EU Competition Law and Economics
by Damien Geradin, Anne Layne-Farrar, and Nicolas Petit, PhD The following is the first chapter of an upcoming book, EU Competition Law and Economics, written by Damien Geradin, a partner in Howrey’s Brussels office; Anne Layne-Farrar, director in the Chicago office of LECG; and Nicolas Petit, a professor at the Université of Liège Law School. Thebook is expected to be published in early 2011 by Oxford University Press. Reprinted with permission of the publisher and authors. The Ubiquity of EU Competition Law Only a few areas of law, and in particular of European Union (“EU”) law, garner as much press exposure as EU competition law: “Europe Fines Intel $1.45 Billion in Antitrust Case”;1 “European Commission blocks Ryanair’s bid for AerLingus”;2 “Brussels slaps record fine on glass cartel”;3 “European Banks get EU Warning.”4 In fact, major business newspapers almost daily report on EU competition authorities’ interventions in the market. Press agencies now boast dozens of specialized competition journalists and offer competition-related briefings on a real-time basis. European Integration Goals: Recent viewpoint, the Commissionconsiders that sectors likely to haven restrictions Case Law Examples to interstate trade constitute priority enRationale – The effectiveness of the forcement targets.7 Many investigations Treaty rules prohibiting public obstacles have for instance been launched in the to trade between member states would car distribution and pharmaceutical be seriously undermined if firms could sectors, where, despitesignificant price reinstate private barriers to trade, for exdifferentials among member states, inample through horizontal market sharterstate trade has remained historically ing agreements. limited.8 Case law – To obviate risks of private partitioning of member states’ markets, the European courts very early on considered that market integration was a core objective of the EU competition rules.In 1966, the Court of Justice held in Consten and Grundig against Commission that: Second, from an evidentiary perspective, the Commission considers that the mere existence of market partitioning practices constitutes an infringement, regardless of its actual (and potential) effects on the market. In other words, the Commission does not need to verify that the impugned agreement has hadanticompetitive effects to apply Article 101 TFEU to such agreements. Similarly, firms cannot escape a finding of infringement by arguing that their conduct did not generate anticompetitive effects.9 Agreements frustrating the objective of market integration are said to have, as their “object,” the restriction of competition.

“…an agreement...which might tend to restore the national divisions in tradebetween member states might be such as to frustrate the most fundamental objectives of the Community; the Treaty, the aim of the Preamble and text of which is to eliminate the barriers between states and which in many of the provisions is severe with regard to their reappearance, could not allow Third, the Commission and the EU This evolution bears testimony to the undertakings to recreate suchbarriers judiciary have promoted a wide substeady rise of EU competition law as (emphasis added).”5 stantive interpretation of the Treaty a critical issue throughout Europe and provisions when faced with market parelsewhere. Today, the constraints im- Since this judgment, many EU scholars titioning practices.10 As will be seen in posed by EU competition law have and enforcers commonly consider thatChapter III, the concept of an “agreebecome a major area of concern for market integration is the “primary” goal ment between undertakings” which seems decision-makers both in the public and of EU competition rules.6 to catch only the concerted action of private sectors (see §1). Yet, beyond the several firms, may also apply to purely cosmetics of press releases and business Practical consequences...