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The Impact of EU Competition Law in Croatia Before and After Accession Prof. Dr. Frank Emmert, LL. M. John S. Grimes Professor of Law and Director Center for International and Comparative Law Indiana University School of Law - Indianapolis
Overview n n Why YOU should be interested in EU Competition Law TODAY and not just after Croatia’s Accession Introduction to the EU system of antitrust oversight • Institutional players • Legal rules n Case studies • • • n Trade restrictive agreements Abuse of a dominant position Mergers and acquisitions Enforcement • Investigative and enforcement powers • Judicial remedies n Summary: What can and what cannot be done when doing business in and with the EU
Croatia is Already Applying EU Law! n n The Stabilisation and Association Agreement between the EU and Croatia, in force since January 2005, requires that Croatia gradually introduces all provisions of EU Law within 6 years = by the end of 2010 (Arts. 69 and 5) EU Competition Law, including the main treaty provisions AND all secondary regulations and directives, with very few exceptions in state aid law, became applicable in Croatia for any agreements and transactions “that may affect trade between the [EU] and Croatia” as of January 2005!!! (Art. 70 of the Stab&Asso Agreement)
Why You Should be Interested in this Presentation n n n Le Creuset of America is the owner of the worldwide patent for the Screwpull LC drew up a contract with a Swiss manufacturer to make the SP for Europe and with an EU distributor to obtain SPs from Switzerland for distribution in the EU Member States The Swiss comp asked me to review the contract, drawn up by a U. S. attorney on behalf of LC I found the contract to be in violation of EU antitrust law This would have made the contract illegal and unenforceable in any EU court The participants would have been subject to fines and other sanctions And the U. S. attorney? … got lucky this time …
Introduction to the EU System of Antitrust Oversight – Institutional Players n n The European Commission - authority over anticompetitive conduct with (potential) cross-border effects The National Competition Authorities of the Member States (NCAs) – authority over conduct with purely national effects The European Court of Justice (ECJ) and the European Court of First Instance (CFI) for judicial review of Commission acts and for interpretation of EU law National courts for review of decisions of the NCAs (with optional or mandatory references to the ECJ)
Introduction to the EU System of Antitrust Oversight – Legal Rules n Articles 101 -109 (ex. Arts. 81 -89) European Community Treaty (TFEU) • • n n n Art. 101: Prohibition of trade restrictive agreements 102: Prohibition of the abuse of a dominant position 106: Rules for public undertakings 107+108: Rules for state aids Regulation 1/2003 on the implementation of Arts. 101 and 102 Various block exemption regulations Reg. 139/2004 on merger control Various other regulations and notices Commission decisions in individual cases Judgments by the CFI in individual cases, judgments by the ECJ on appeal, and other judgments by the ECJ interpreting the legal rules
Case Studies Trade Restrictive Agreements - 1 n n Classic Cartels: Various non-EU manufacturers of wood pulp (for paper production) agree on minimum prices for the EU market Classic Cartels: Various EU and non. EU chemicals makers fix prices and share markets in the EU (dyestuffs cartel)
The Language of Article 101 1. The following shall be prohibited as incompatible with the common market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market, and in particular those which: (a) directly or indirectly fix purchase or selling prices or any other trading conditions; (b) limit or control production, markets, technical development, or investment; (c) share markets or sources of supply; (d) apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; (e) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts. 2. Any agreements or decisions prohibited pursuant to this article shall be automatically void. 3. The provisions of paragraph 1 may, however, be declared inapplicable in the case of: — any agreement or category of agreements between undertakings, — any decision or category of decisions by associations of undertakings, — any concerted practice or category of concerted practices, which contributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, and which does not: (a) impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives; (b) afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question.
Case Studies Trade Restrictive Agreements - 2 n Restrictive Licensing Agreements: Parker Pen of the UK has exclusive distribution agreements with partners in different MSs. Because of price differences, parallel importers from the Netherlands order pens from Germany. Herlitz, the German distributor, refuses because of territorial restrictions in the license agreement. The parallel importer complains to the Commission and both Parker and Herlitz are fined for maintaining a trade restrictive agreement. (Case T-77/92)
Case Studies Trade Restrictive National IP Laws n n The Centrafarm Saga: The pharma market in the EU used to be highly fragmented, with price controls in some MSs (UK) and unavailability of patent protection in others (Italy). Centrafarm of NL orders cheap drugs in large packages for the British National Health Service from Britain and repackages them into smaller batches for individual customers in Germany, NL, and other MS. Centrafarm affixes the original trademarks to the new packages, together with a note “re-packaged by Centrafarm”. Where drugs are sold under a different name, CF buys unprotected “A” in Italy and affixes the German name “B” to compete with the protected product on that market. In another case, the manufacturer does not package the pills in a film strip. CF buys the bulk packages in the UK, opens them in a sterile environment and repackages them into film strips for sale to individual customers on the continent under the trademark of the original manufacturer.
The Language of Arts. 34 -36 (ex. Arts. 28 -30) n n n Art. 34: Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States. Art. 35: Quantitative restrictions on exports, and all measures having equivalent effect, shall be prohibited between Member States. Art. 36: The provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.
Case Studies Abuse of Dominant Positions - 1 n n Classic Abuse Scenarios: United Brands = cream skimming by a highly integrated banana grower Classic Abuse Scenarios: Akzo Nobel = existential threats against a smaller challenger in a highly profitable market (benzoyl peroxide)
The Language of Art. 102 Any abuse by one or more undertakings of a dominant position within the common market or in a substantial part of it shall be prohibited as incompatible with the common market in so far as it may affect trade between Member States. Such abuse may, in particular, consist in: (a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions; (b) limiting production, markets or technical development to the prejudice of consumers; (c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; (d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.
Case Studies Abuse of Dominant Positions - 2 n n n And then there is Endress + Hauser, a mid-size supplier of measuring instruments and automation solutions for the industrial process engineering industry Based in Switzerland (= non-EU), with a turnover around 1 billion $ And they had a problem…
Case Studies Mergers and Acquisitions - 1 n n n Any “change of control on a lasting basis” by merger or acquisition Requires prior authorization from the EU Commission if it has a “Community dimension” “A concentration has a Community dimension where: • (a) the combined aggregate worldwide turnover of all the undertakings concerned is more than EUR 5, 000 million; and • (b) the aggregate Community-wide turnover of each of at least two of the undertakings concerned is more than EUR 250 million, • unless each of the undertakings concerned achieves more than two-thirds of its aggregate Community-wide turnover within one and the same Member State. ”
n The Commission gets on average about 30 merger notifications per month from companies as diverse as Novartis (Switzerland), Gazprom (Russia), or Johnson & Johnson / Guidant (USA)
DG. 24. 40 - Manufacture of pharmaceuticals, medicinal chemicals and botanical products M. 3928 - TEVA / IVAX M. 3853 - SOLVAY / FOURNIER M. 3755 - NORDIC CAPITAL / NYCOMED M. 3751 - NOVARTIS / HEXAL M. 3544 - BAYER HEALTHCARE / ROCHE (OTC BUSINESS) M. 3497 - PFIZER / CAMPTO M. 3493 - YAMANOUCHI / FUJISAWA M. 3449 - GLAXOSMITHKLINE / SANOFISYNTHELABO (ASSETS) (4064) M. 3394 - JOHNSON & JOHNSON / JOHNSON & JOHNSON MSD EUROPE M. 3354 - SANOFI-SYNTHELABO / AVENTIS M. 3323 - CARDINAL HEALTH / INTERCARE GROUP M. 3015 - CREDIT SUISSE / BLACKSTONE / NYCOMED M. 2922 - PFIZER / PHARMACIA M. 2517 - BRISTOL MYERS SQUIBB / DU PONT M. 2419 - APAX / SCHERING / METAGEN M. 2312 - ABBOTT / BASF M. 1878 - PFIZER / WARNER-LAMBERT M. 1846 - GLAXO WELLCOME / SMITHKLINE BEECHAM M. 1835 - MONSANTO / PHARMACIA & UPJOHN M. 1782 - AMERICAN HOME PRODUCTS / WARNERLAMBERT COMPANY M. 1512 - DUPONT / PIONEER HI-BRED INTERNATIONAL M. 1378 - HOECHST / RHÔNE - POULENC M. 1366 - PARIBAS / CDC / BEAUFOUR M. 1229 - AMERICAN HOME PRODUCTS / MONSANTO M. 1220 - ALLIANCE UNICHEM / UNIFARMA M. 954 - BAIN / HOECHST - DADE BEHRING M. 950 - HOFFMANN - LA ROCHE / BOEHRINGER MANNHEIM M. 885 - MERCK / RHÔNE-POULENC - MERIAL M. 821 - BAXTER / IMMUNO M. 781 - SCHERING / GEHE - JENAPHARM M. 737 - CIBA-GEIGY / SANDOZ M. 716 - GEHE / LLOYDS CHEMISTS M. 632 - RHONE-POULENC / FISONS M. 631 - UPJOHN / PHARMACIA M. 587 - HOECHST AG / MARION MERRELL DOW M. 572 - GEHE / AAH M. 555 - GLAXO PLC / WELLCOME PLC M. 500 - AMERIC. HOME PRODUCTS (AHP) / AMERIC. CYANA. M. 495 - BEHRINGWERKE AG / ARMOUR PHARMA M. 480 - SANOFI / KODAK M. 464 - BMSC / UPSA M. 457 - ROCHE / SYNTEX M. 426 - RHONE POULENC / COOPER M. 323 - PROCORDIA / ERBAMONT M. 285 - PASTEUR MERIEUX / MERCK M. 72 - SANOFI / STERLING DRUGS M. 58 - BAXTER - NESTLE / SALVIA DG. 24. 41 - Manufacture of basic pharmaceutical products M. 4010 - FRESENIUS / HELIOS DG. 24. 42 - Manufacture of pharmaceutical preparations M. 4007 - RECKITT BENCKISER / BOOTS HEALTHCARE INTERNATIONAL M. 3304 - GE / AMERSHAM M. 1543 - SANOFI / SYNTHELABO M. 1403 - ASTRA / ZENECA M. 1397 - SANOFI / SYNTHELABO M. 1201 - DUPONT / MERCK
Case No COMP/M. 3687. JOHNSON&JOHNSON / GUIDANT n n The Commission decision is 122 pages long It permits the merger But also stipulates numerous conditions, including divestment from certain businesses and/or economic activities Implementation of all commitments and conditions is supervised by the Com for a period of ten years
Case No IV/M. 619 - Gencor/Lonrho n n n Gencor is a South African platinum producer, Lonrho is a British conglomerate. Together, they want to acquire Impala Platinum, another South African platinum producer. The EU Commission prohibits the merger See also the prohibition in GE/Honeywell
Investigative and Enforcement Powers n n Powers of the EU Commission Powers of the National Competition Authorities (NCAs) n Powers of the Courts n Private Enforcement Powers
Powers of the EU Commission n Investigative Powers • • To receive complaints or to act of its own motion To send out inquiries to state authorities, investigated companies, suppliers, customers, competitors, etc. • To take over investigations started by NCAs • To make “dawn raids” • To take decisions on the basis of “available information” n Enforcement Powers • • To give instructions to NCAs To declare agreements and practices illegal To order discontinuation of anticompetitive conduct To require dissolution of a merger or even divestment / break-up of a conglomerate • To issue periodic penalty payments (e. g. Hoechst) • To issue fines of up to 10% of annual turnover of the enterprises concerned
Powers and Obligations of the NCAs n n n To collaborate with the Commission To collaborate with other MS NCAs in the European Competition Network (ECN) To supervise the markets and to receive complaints To make investigations To bring anticompetitive conduct to an end and to restore competitive market conditions To impose sanctions punishing past violations and deterring future violations
Powers and Obligations of the Courts = Judicial Remedies n At the European Level • Art. 263 (ex Art. 230) procedures: undertakings challenging Commission decisions in the CFI • Art. 267 (ex Art. 234) procedures: national courts making references to the ECJ • Art. 258 (ex Art. 226) procedures: Commission v. MS for breach of EU law n At the National Level • Procedures by undertakings against decisions of NCAs • Procedures by suppliers, customers, competitors or other concerned parties to force NCAs to take action against perpetrators • Procedures by suppliers, customers, competitors or other concerned parties for damages
Private Enforcement Powers n n Any interested party can send complaints to the EU Commission and/or the NCAs Anticompetitive agreements are unenforceable under contract law National courts may have to provide injunctions against anticompetitive conduct The Crehan-Liability in tort law
Case C-453/99 Courage and Crehan, 2001 ECR I-6297 n n n Courage and Grand Met jointly ran IEL to manage their pubs in the UK Pub operator Crehan refused to pay for beer deliveries and claimed anticompetitive agreements and abusive conduct The ECJ interpreted EU law to the effect that the agreement between C/GM/IEL is anticompetitive and unenforceable and that Crehan claim damages
Excerpts from the Crehan judgment 23. […] it should be borne in mind that the Court has held that Article 81(1) of the Treaty and Article 82 of the EC Treaty produce direct effects in relations between individuals and create rights for the individuals concerned which the national courts must safeguard (judgments in Case 127/73 BRT and SABAM  ECR 51, paragraph 16, (BRT I) and Case C-282/95 P Guérin Automobiles v Commission  ECR I-1503, paragraph 39). 24. It follows from the foregoing considerations that any individual can rely on a breach of Article 81(1) of the Treaty before a national court even where he is a party to a contract that is liable to restrict or distort competition within the meaning of that provision. * 25. As regards the possibility of seeking compensation for loss caused by a contract or by conduct liable to restrict or distort competition, it should be remembered from the outset that, in accordance with settled case-law, the national courts whose task it is to apply the provisions of Community law in areas within their jurisdiction must ensure that those rules take full effect and must protect the rights which they confer on individuals (see inter alia the judgments in Case 106/77 Simmenthal  ECR 629, paragraph 16, and in Case C-213/89 Factortame  ECR I-2433, paragraph 19). 26. The full effectiveness of Article 81 of the Treaty and, in particular, the practical effect of the prohibition laid down in Article 81(1) would be put at risk if it were not open to any individual to claim damages for loss caused to him by a contract or by conduct liable to restrict or distort competition. 27. Indeed, the existence of such a right strengthens the working of the Community competition rules and discourages agreements or practices, which are frequently covert, which are liable to restrict or distort competition. From that point of view, actions for damages before the national courts can make a significant contribution to the maintenance of effective competition in the Community. *This protects in particular involuntary parties, suppliers, customers, competitors…
Summary n n Any enterprise that has substantial commercial activities in Croatia and/or in the EU, with or without a commercial presence in the form of a branch or subsidiary, MUST take into account the rules of EU AND MS antitrust law! These rules not only affect classical antitrust violations such as cartels; they also regulate less obvious cases, such as the activities of industry associations (e. g. information exchange), exclusive distribution agreements, franchise agreements, licensing agreements, joint R&D activities, price differentiation in different EU markets, trade in goods protected by MS IP systems, M&A of significant size, and many more. As a consequence, for attorneys or in-house counsel working in or with internationally active companies it is today a matter of professional responsibility to have at least a basic understanding of EU antitrust law in its various manifestations in order to know when a more thorough compliance check with the help of specialists has to be done PRIOR to the implementation of a new corporate strategy, new (types of) collaboration agreements, etc. (and/or whether existing strategies may need to be re-examined)! Better safe than sorry!
Thank You for Your Attention!
For questions or comments please contact Prof. Dr. Frank Emmert, LL. M. John S. Grimes Professor of Law Director, Center for International and Comparative Law Project Director Egypt Editor-in-Chief, European Journal of Law Reform Indiana University School of Law - Indianapolis 530 West New York Street Indianapolis, IN 46202 -3225 Tel. (317) 278 9661 Fax (317) 278 3326 e-mail [email protected] edu