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