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

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

3. 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

4. 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?

5. 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

6. 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

7. 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

8. 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

9. 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?

10. 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?

11. Questions?

12. 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.