2010 Volume 31 Issue 12 ISSN: 0144-3054 Articles SULIAN NOWAG GIANNI DE STEFANO SYLVAIN DUBOIS EVIMATTIOLI -MARI MATIUS AND CARRI GINTER DUNCAN SINCLAIR, [DAWN DEMELLWEEK European Competition Law Review Table of Contents SELEX Sistemi Integrati SpA v Commission of the European Communities (C-113/07 P) (2009 E.C.R. 1-2207: Redefining the boundaries between undertaking and the exercise of public authority 483 ‘is worth taking a closer look atthe Cour of Justice judgment in Selex Sistemi Integra SpA v Commision The Court of ustice's judgment add important elements wit regard to the definition of underaking, a it pr redefines the boundaries between the exercise of pubic authori snd economic tivity: ‘The new EU Vertical Restraints Regulation: Navigating the vast seas beyond safe harbours and hardcore restrictions 487 “The European Commission has adopted anew Regulation exempting certain suplyand distribution agreements from the prohibition against anticompetitive arrangements. The new Regulation, and ccompenyng st of ew Guidelines, wil affect the exiting distbution agreements, n particular those relating to online sales or involving one or more companies with buying power. ‘The approach adopted by the Commission regarding outsoureing transactions and whether they constitute concentrations for the purpose of Regulation 139/2004 491 ‘The European Commission excludes simple outsourcing and group outsourcing fom the scope of ‘Regulation 13912004 onthe conto of concentrations (the Merger Regulation). However, study of its ‘ase aw shows tat transfer outsourcing and joint-venture outsourcing are likely to onsite oncenzations within the meaning of the Merger Regulation. ‘The investigation of antitrust infringements in Belgium—towards an unfettered discretionary power? 498 ‘This rile will asess the broad margin of discretion ofthe Belgian Competition Authority in he context of investigations of anit infingemens. The authority has established an extensive—both formal ‘nd informal—prseeution policy, which wil be pu into a European perspective ‘Assessment of non-horizontal mergers in Estonia 504 “Tis rtcle focuses onthe case la of essesment of non-horizontal merger ia Estonia. Paters and ‘ror in markt definition, detecting vertical relations between relevant markets and input and ouput foreclosure analysis ar identified A decision where foreclosure analysis has ben comet applied has Also ben examined Counterfactuals in anti-competitive contracts and abuse of dominance cases under articles 101 and 102 TFEU 509 “The we and the language of countrfactuls hasbeen common in merger control fr sometime For the fist time, the Commision has refered to it explicitly in guidance with reference othe Treaty Ales, snd ithas been used bya national competition authority and upheld by the courts. The scope for use of ‘various forms of counterfctal as evidence of breach has profound connotations for both arts 101 and 12 TREU. ast stop for the rail-franchise regime? 530 “This article examines th rolling stock market investigation, the impact of goverment policy on ‘competition andthe tersons between government policy objectives and achieving competive market Conditions, The ate explores the lintatons of the Compestion Commissions powers in investigating Fegulated markets and considers the impact ofthe investigation on the wider ral Fanchise regime.Case Comment JONATHAN GALLOWAY Book Review [FRIEDRICH WENZEL BULST National Reports European Institutions France Hungary Italy ‘Netherlands Portugal Spain Spain Spain United Kingdom United States United States United States AstraZeneca v European Commission 536 ‘The General Court upheld the Commission Decision finding that AdraZenece abused its dominant positon nthe marke for treating gastic-acid conditions, Thi comment highlights the interface between [PRs and competition law inthis novel caso and considers the implications ofa forceful endorsement ofthe Commissions approach in the pharmaceutical econ, ‘The Enforcement of Competition Law in Europe edited by Thomas M.J. Mllers and Andreas Heinemann 539 Merger Regulations Prior notifications of proposed concentrations N-185, Anti-Competitive Practices Competition Authority N-187 Abuse of Dominance Supreme Court of Hungary N-189 Legislation Procedure—class actions N-190 Competition Authority Wegener/BN/De N-191 General Competition Authority N-192 Legislation National Competition Council N-193 General ‘National Competition Council N-194 Mergers National Competition Counell N-195 Procedure Office of Fair Trading N-196 AnG-Competitive Practices Federal Trade Commission N-197 Mergers Federal Trade Commission N~198 Anti-Competitive Practices Federal Trade Commission514 European Competition Law Review Ensuring a more level playing field in competition enforcement throughout the European Union Abel M. Mateus’ Professor of Economics, Universidade Nova de Lisboa. © Comptition law; Enforcement; EU law; European Competition Network; National competition auth« Introduction The van Miert-Monti' reform that was enacted in May 2004? had the following three major objectives’ 1. Empowerment of national competition authorities and courts to apply the EU antitrust rules, so that there are multiple enforcers of competition law, including the European Commission. 2. A more level playin field for businesses ‘operating cross-border as all competition enforcers apply the EU antitrust rules to cases that affect trade between Member States, to ensue the building ofthe Single Market. Close co-operation between the ‘Commission and national competition authorities by creation of the European Competition Network (“ECN’). ‘This was considered as the most comprehensive reform, ‘of Community antitrust since 1962.‘ The Joint Statement of the Council and the Commission on the functioning of the network of competition authorities also stated: 1. _Decentralisation of the implementation of ‘Community competition rules strengthens the position of the national competition authorities (*NCAs”). These will be fully ‘competent to apply arts 101 and 102 (ex arts 81 and 82 EC) of the Treaty, atively contributing to the development of ‘competition policy, law and practice (recital 6. 2. All competition authorities within the ‘Network are independent from one another. ‘Co-operation between NCAs and with the ‘Commission takes place on the basis of equality, respect and solidarity (recital 7) 3. The Commission, as the guardian of the ‘Treaty, has the ultimate but not the sole responsibility for developing policy and safeguarding efficiency and consistency. ‘Therefore, the instruments of the ‘Commission on the one hand and of the NCAs on the other hand are not identical ‘The additional powers the Commission has been granted to fulfil its responsibilities will be exercised with te utmost regard for the co-operative nature of the Network (recital 9), ‘The model chosen for the implementation of antitrust in ‘an economic and political Union was a semi-decentralised system, with the Commission continuing as the guardian of the Treaty, and thus to having the last word on enforcing the Treaty, but empowering the NCAs and ‘National Courts to apply directly arts 101 and 102 (ex arts 81 and 82 EC). We should recall that merger control continued to be allocated between the Commission and the NCAs, but these had full discretion on the decisions regarding mergers below the threshold established by Regulation 139/2004 [2004] OF L24/1. The Commission hhas no right to express their opinion orto intervene in the national cases, although some authorities have sought their advice on an informal and broad sense for complex cases.‘ We should recall that the European courts would continue to have the control of their decisions by the Commission and in interpreting the Treaty. Guiding this paper is the central question: what are the criteria that should be used to measure the efficiency of fan antitrust regime? 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