European Antitrust Law - indice

CMYK

‘The book is so comprehensive that it cannot be summarised in a few lines, precisely because it deals with the entire subject matter without shirking any of the pertinent issues. The author analyses these thoroughly and meticulously, and backs up his assertions with the appropriate legislative, jurisprudential and bibliographical references. However, what is most striking is not so much the range and variety of the subjects which the author tackles, or the sometimes punctilious accuracy of the information that he includes, but rather his enormous knowledge of the subject matter and the enthusiasm that he brings to bear to his treatment of it.’

– Antonio Tizzano, Professor of EU Law and Judge at the European Court of Justice ‘The book provides a thoughtful, comprehensive and yet concise contribution to the competition law literature and should be of interest to students in the field in Europe and worldwide.’

– Renato Nazzini, University of Southampton ‘This book definitely contributes an original perspective into EC antitrust rules.’

– Luis Ortiz Blanco, Garrigues, Abogados y Asesores Tributarios, Spain

European Antitrust Law

European Antitrust Law

Lorenzo Federico Pace

European Antitrust Law

Lorenzo Federico Pace

Lorenzo Federico Pace is Associate Professor of EU Law at the University of Camerino and Member of the Bar of Rome.

CMYK

European Antitrust Law

Prohibitions, Merger Control and Procedures

The recent modification of the European Antitrust Law system, which concerns both the substance of the prohibitions and the system of enforcement, called for a thorough re-examination of this sector.

Against this background, this book offers a new and coherent organisation of the subject. It takes into consideration the changes not only to the interpretation of Articles 81 and 82 EC, but also to the procedural aspects related to Reg. 1/03.

In this context, the reform of Reg. 139/04 on European merger control is also fully taken into consideration.

European Antitrust Law places current EC antitrust and merger control rules in their historical context, considering both the economic foundations and guiding principles of the law. It will therefore be an invaluable and stimulating guide to EC antitrust law for scholars, students and practitioners alike.

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Lorenzo Federico Pace

European Antitrust Law Prohibitions, Merger Control and Procedures ___________________________________________________

Lorenzo Federico Pace Associate Professor of EU Law, University of Camerino Attorney at Law, Rome

Edward Elgar Cheltenham, UK • Northampton, MA, USA

Contents ___________________________________________________ Preface PART I

1.

2.

3.

5.

6.

7.

CARTELS AND THE PROCESS OF EUROPEAN INTEGRATION

The Worldwide Industrialisation of the 19th Century and the ‘Cartelisation’ of the European Economy The Dissolution of the Worldwide Steel Cartel and the Establishment of the ECSC System The EEC and the Birth of European Competition Law

PART II 4.

ix

3 19 23

EUROPEAN ANTITRUST POWERS

The Antitrust Powers of the EC Treaty and the Concept of Antitrust Law The Goals of European Antitrust Law The Characteristics of Articles 81 and 82 EC The Scope of Articles 81 and 82 EC

33 37 45 49

PART III ARTICLE 81 EC 8.

9.

10.

11.

12.

The Drafting of Article 81 EC The Implementation of Article 81 EC The Content of Article 81 EC Article 81 EC and Horizontal Agreements Article 81 EC and Vertical Agreements

65 70 75 94 99

PART IV ARTICLE 82 EC 13.

14.

15.

16.

The Drafting of Article 82 EC The Implementation of Article 82 EC The Content of Article 82 EC Article 82 EC and Exclusionary Abuses v

111 112 113 125

vi

European Antitrust Law

17. Article 82 EC and Exploitative Abuses 18. Article 82 EC and Discriminatory Abuses PART V

147 152

ARTICLES 81 AND 82 EC APPLIED TO THE MEMBER STATES

19. The Combined Effect of Articles 10 and 81 EC 20. The Combined Effect of Articles 82 and 86(1) EC 21. The Binding Nature of Unlawful National Measures and the Antitrust Liability of Private Persons and the Member States

157 162 165

PART VI VERTICAL ASPECTS OF EUROPEAN ANTITRUST LAW 22. European Antitrust Powers and the Principles of Subsidiarity and Proportionality 171 23. Principles to Resolve the Conflict between European Antitrust Law and National Laws under the EC Treaty and Regulation 1/03 176 PART VII THE BODIES AND INSTITUTIONS OF THE EUROPEAN ANTITRUST ENFORCEMENT SYSTEM 24.

25.

26.

27.

The Commission National Antitrust Authorities Antitrust Federalism National Courts

199 200 202 205

PART VIII THE ANTITRUST ENFORCEMENT SYSTEM ESTABLISHED BY THE EC TREATY 28. The Commission: Powers, Decisions and Penalties 29. National Antitrust Authorities: Powers, Decisions and Penalties 30. Mechanisms Allowing Cooperation between the Commission and National Antitrust Authorities 31. Mechanisms Allowing the Commission and National Antitrust Authorities to Control Each Other 32. Judicial Enforcement of Antitrust Law

209 211 213 214 215

PART IX THE ANTITRUST ENFORCEMENT SYSTEM ESTABLISHED BY REGULATION 1/03 33. The Evolution of the Policy of Decentralising Antitrust Law 219 34. The Commission: Decisions, Powers of Investigation and Penalties 231

Contents

35. National Antitrust Authorities: Decisions, Powers of Investigation and Penalties 36. Mechanisms Allowing Cooperation between the Commission and National Antitrust Authorities: Vertical and Horizontal Cooperation 37. Control Mechanisms Allowing the Commission and National Antitrust Authorities to Control Each Other: Vertical Descending, Peer and Vertical Ascending Control 38. Judicial Enforcement of Antitrust Law 39. Mechanisms Allowing Cooperation between the Commission and the National Courts 40. Mechanisms Allowing the Commission and National Antitrust Authorities to Monitor the Decisions of the National Courts PART X

vii

261

275

295 312 330 337

EUROPEAN MERGER CONTROL

41. The Role of Merger Control in the EC Treaty 42. Competence in the Field of Merger Control in the EC Treaty 43. Basic Concepts of European Merger Control: The Concept of Merger, Merger Subject to Notification and Prohibited Merger 44. Allocation of European Merger Control Powers as between the Community and the Member States

345 348 349 355

PART XI THE MERGER CONTROL SYSTEM ESTABLISHED BY REGULATION 139/04 45. The Commission: Powers, Proceedings Assessing the Merger and Penalties 46. National Antitrust Authorities: Powers 47. Mechanisms Allowing Cooperation between the Commission and National Antitrust Authorities 48. Mechanisms Allowing the Commission and National Antitrust Authorities to Control Each Other

359 376 377 384

Bibliography

385

Index

399