EUROPE COMPETITION LAW

Composed of 28 countries
2 CORE TREATIES
o master treaty of the EU
o treaty for the functioning of the EU TEFU
A goal of the EU is for the major establishment of a common market where goods, labor and capital flow
freely across borders
The provisions on competition have been policing the EU common market since 1957. They are
currently found in the TFEU, previously found in the Treaty for the Establishment of the EU (TEEC).
o The provisions essentially remained the same, but the numbering changed.
What was once in Article 81-86 of the old treaty is now in articles 101 to 106 of the new
treaty.
Thus, depending on the age of the material being used, you will see references of
content of both treaties.
o Rule of 20 add or subtract 20 to clarify where you are.
Provisions
o Art. 101 prohibitions against concerted activity such as price fixing and vertical agreements
Several sections
o 102 firms holding a dominant position and prohibition on abuse of such position
Examples of what abusive activites might be
o 103-105
103 calls for IRRs to provide detail on the implementation of 101 and 102, and
clarification of the roles various institutions play.
104 transitional provisions
105 authorize the EU Commission to enforce cases.
o 106 deals with circumstances where public undertakings.
EU Institutions
o European Commission
o Court of Justice of the EU
Various executive tasks of the EU is carried out by about 3 dozen directorates general under the
commission
o There is a director general devoted entirely to competition matters
2 highest members:
Margrethe Vestager (Commissioner for Competition)
Alexander Italiener (DG for Competition; head administrator)
Judicial branch of the EU Court of Justice of the EU (CJEU)
o Most people refer to it as the European Court of Justice (ECJ)
o ECJ shares general responsibilities with the general court and the civil service tribunal for
our purposes we care about the ECJ and general court
o General Court former court of first instance (CFI), which decides both facts and law
o ECJ acts as the supreme court and hears appeals mostly pertaining to disputes of law only.
No appeal beyond the ECJ.
Enforcement basically works this way (EU Adjudication of Competition Cases)
a. Commission issues fine upon recommendation of the DGC and others
i. Commissioner undertakes an investigation.
ii. The parties have procedural rights, but the DG is not a quasi-judicial body.
iii. If the DG finds an offense the parties can annul the decision by approaching the General
Court.
b. General Court hears petitions to annul
c. ECJ hears appeals on points of law

US COMPETITION LAW
Sherman Act
o Section 1: concerted action amongst businessmen
In this area, enforcement agencies are most concerned about price-fixing agreements. In
the US, these are illegal per se. The PH Competition Act borrows this terminology.
Closest counterpart in EU is Art. 101
o Section 2: monopolization, which usually involves a very large company taking actions that
exclude competitors from a particular market.
Closest counterpart in the EU is Art. 102.
Clayton Act
o Enacted to improve Anti-Trust enforcement
o Allowed for private action that resulted to treble damages.
o Established standards for opposing anti-competitive mergers and prohibited certain
arrangements known as tying arrangements that required consumers to buy 2 or more products
together.
Robinson Patman Act amended the Clayton Act
o Prohibits price discrimination that harms competition.
Hart-Scott-Rodino Act amended the Clayton Act
o Established a procedure for screening mergers that might be harmful to competition
Federal Trade Commission Act
o Bans (1) unfair methods of competition and (2) deceptive acts or practices.
o Under the FTCA, the Federal Trade Commission can bring civil cases involving violation
of the Sherman Act as well as other practices outside that statutes boundaries.
o The FTCA also gives the Federal Trade Commission the authority to review mergers which
it does in a power-sharing agreement with the Dept. of Justice.
US Enforcement and Adjudication
o Both private parties and DOJ can bring cases for violations of the Sherman Act and the Clayton
Act. These are heard in Federal District Courts.
o Appeals go to one of the 12 US Circuit Courts of Appeal
o The Supreme Court can choose to hear appeals from the Circuit Courts if it so chooses.
There is only 1 SC in the Federal System, referred to in the press as SCOTUS
Only the DOJ can prosecute criminal violations of the Sherman Act
The FTC has its own quasi-judicial process for determining violations of the FTC Act.
o Decisions issued by FTC Commissioner can be appealed to the Federal Courts of Appeal.
o But if the Commission is seeking injunctive relief, it must go to a Federal District Court.
Almost all states have mini-Sherman Acts.
o It gives state authorities, and sometimes private parties, the right to go after violators of the
statutes.
o Usually the actions involved are localized and with limited competitive effects.