Competition Law and its Application: European Union Martin Commons, Senior Associate, Shanghai Representative Office Beijing, 16 September 2009

Covering The law Jurisdiction The institutions Civil damages actions in the EU

EC Treaty: Article 81 Prohibits agreements between undertakings with either anti-competitive object or effect Prohibited agreements are void and unenforceable Agreements can be exempted from Article 81 Important concepts: “Agreement” can be written, informal, oral “Undertakings” – need at least 2 parties Exemption – block exemptions and self-assessment

EC Treaty: Article 82 Abuse of a dominant market position by an undertaking is prohibited Important concepts: Applies only to undertakings in a dominant market position Need for market definition and assessment “Abuse” Listed in Article 82: …but some flexibility Need to show negative effect on competition?

Sources of EU Competition Law EC Treaty Regulations, Notices and Guidelines Procedural rules Article 81 block exemptions Guidelines: intended to help self-assessment or clarify enforcement policy Example: Guidelines on horizontal cooperation agreements Decisions of authorities Court judgments

Jurisdiction EU competition law applies where the agreement or conduct has an effect on trade between EU countries Need to consider the relevant market 27 national competition laws applies where (1) EU competition law does not apply; and (2) where there is an effect on competition within that country Examples: (1) supply of mobile telephone services in the UK; (2) supply of passenger air transport services from the UK to Germany

Enforcement – Competition Authorities Roles: Investigation, enforcement, fines, guidance European Commission (EU law) 27 National Competition Authorities (EU law and national law) European Competition Network ECN) Coordinates NCA and Commission enforcement of EU law Philip Lowe DG for Competition Neelie Kroes Commissioner for Competition

Enforcement - Courts European Court of First Instance (CFI) Appeals and claims against European Commission No direct private claims under competition laws European Court of Justice (ECJ) Appeals of CFI judgments Questions from national courts on EU competition law 27 National Court Systems Appeals from national competition authorities Private claims for damages European Commission role as amicus curiae

Litigation (1) 2001: ECJ judgment in Courage v Crehan confirmed that national courts should award civil damages in actions concerning EU competition law violations 2004: National courts can expressly determine EU competition law violations independently of the authorities. Note: No civil damages actions before CFI or ECJ Variable success so far due to differences in national legal systems Examples: multiple claimants, proving the infringement, who can claim?

Litigation (2) April 2008: European Commission White Paper on compensating consumer and business victims of breaches of the competition rules Collective actions Judicial orders for disclosure of evidence Final decisions of competition authorities = conclusive evidence of a violation What happens when a victim “passes on” the damage of a violation through higher prices to its own customers?

Questions?

Competition Law and its Application: European Union Martin Commons, Senior Associate, Shanghai Representative Office Beijing, 16 September 2009 Baker & McKenzie LLP is a member of Baker & McKenzie International, a Swiss Verein with member law firms around the world. In accordance with the terminology commonly used in professional service organisations, reference to a "partner" means a person who is a member, partner, or equivalent, in such a law firm. Similarly, reference to an "office" means an office of any such law firm.