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Flashcards in Article 101 Deck (30)
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1
Q

what is the definition of all agreements

A

need’nt be binding
applies to vertical and horizontal situations
undertakings outside EU liable if effects felt inside

2
Q

what does it mean for it to be a vertical situation

A

between manufacturer and dealer

3
Q

what does it mean for it to be a horizontal situation

A

between manufacturers only

4
Q

what happened in the case of Ahlstrom v Commission

A

engaged in a concerted practice relating to the prices. the ecj said rasing prices at the same time by the same amount was strong enough evidence of a concerted practce and further. the decisive factor was not where the undertakings were based byt where the agreement was implemented in the EU then the Eu law apply

5
Q

what does undertaking mean

A

any natural persn (individual) or legal person (economic entity)

6
Q

what does concerted practices mean

A

practical co-operation knowingly subsituted for risks of competition

7
Q

what happened in the case of imperial chemicals industries v commission

A

introduced uniform price increases almost simultaneously in 1964, 1965 and 1967. ECJ said parallel behaviour wasn’t per se concerted practice but was very strong evidence of it.

8
Q

What happened in the case of Rhone Poulenc v commission

A

the applicant took part in meeting at which it disclosed price and production figures to its competitors. This was intended to influence the conduct of the market. Held by the ECJ, mere attendance at meetings would be proof of participation in a concerted practice. as an undertaking would be bound to take into account, information received fair.

9
Q

what could happen when trade is effected between member states

A

deviation from normal pattern

10
Q

what happened in the case of re vacuum interrupters

A

concerned an agreement between Uk manufacturers to design and develop gear in the UK. Otherwise they might have tried to develop it independently and market it in otther states - held by the ecj this therefore did affect trade between member states

11
Q

what are the four elements of article 101

A

1 - find agreement, decision or concerted practice
2 - between undertakings
3 - which affects trades between member states
4 - IMPORTANT - has the actual or potential effect to prevent, restrict or distort within the common market.

12
Q

what happened in the case of Consten SARL v commission

A

G appointed C as sole distrubtor and gave them the exclusive rights to use g’s trademark. c agreed not to export g’s product to other EU countries. G agreed with c to get similar assurances with similar EU dealers. Another company, U sold g’s product in france at lower prices having bought them in Germany. C sued U for breach of french trademark. ECJ said - the agreement between C & G was in breach of article 101 in particular TERRITORIAL EXCLUSIVITY, prohibition on exports and price fixing were all breaches.

13
Q

what happened in the case of societie technique minier v MBU

A

STM had the exclusive right to sell in france quipment manufactured by MBU. agreement was similar to those in consten case but had two important differences
no ban on parallel imports or exports and there were no trademakr exclusive licence granting territorial ecj said it was valid

14
Q

what else did th ECJ say in th case of societie technique miniere v MBU

A

The courts should look at
1 - the nature and quantity of products (aka the product market and the parties share in it)
2 - the position in the market and the importance the parties concerned
3 - whether the agreement was isolated or in a series
4 - the severity of clasuses are they more than is needed for the desired result
5 - the possibility on parallel imports and exports.

15
Q

what happened in the case of VOlk

A

VK gave VE the exclusive right to distribute in beligium and luxemburg. VK agreed to block parallel imports however VK’s share was very samll at it only consisted of three countries. held by the ECJ - market share was so tiny and could not breach aricle 101

16
Q

What are qualitative clauses and are they in breach?

A

qualitative clauses are things such as the qualifications of dealer, the suitability of premises.
They are not in breach, if objective, unifrom, non-discriminatory and not beoynd what is necessary

17
Q

what case example is of a qualititative clause

A

Re Ideal/Standard agreement case
concerned franchises for selling equipment and sanitary ware. had a number of terms in their contract which require all retailers to be specialist. ecj said - plumbing was not technologically advanced to acquire such a complex and exacting selective distribution system BUT provided qualitative clauses regarding staff, the suitability of premises etc these were proportionate - they would not breach article 101

18
Q

what are quantitative clauses and are they a breach

A

Quantitative clauses are minimum turn over and stocks and prices
usually in breach bu possibly exemptible

19
Q

What are some specific examples of clauses and their potential to breach article 101

A

1- prices - note centres leclerc v sarl
2- other - protecting manufacturers (re ideal/standard agreement case), protecting distributors )establissement consten sarl

20
Q

what happened in the case of centres-leclerc v SARL

A

French legislation allowed resale price maintenance for books
ecj allowed this in exceptional circumstances because most EU states allow some form of price maintenance for books and no general EU law provision prohibited it.

21
Q

what happened in the case of publishers association v commission (No.1)

A

The UK publisher association code of conduct had standard conditions for the fixed price sale of books which covered all books sold in the UK and also exports and reimports. The commission found this to be a breach of article 101 and no exemption applied under article 101(3) - the court agreed.

22
Q

are minimum prices a breach

A

yes they prevent undercutting of price and therfore competition beyond a certain point

23
Q

are recommended prices a breach

A

this is risky, they may be a breach if they lead to concerted practice (ie when everyone follows the reccommendation)

24
Q

are maximum prices a breach

A

They are normally okay as they allow competition on price downwards.

25
Q

what is the only case to prove qualitative clause

A

er ideal/standard agreements case

26
Q

can “open” exclusive patent licencing agreements (restricting grantors right to compete in licenced territory or grant other licences there) be in breach

A

They may not be proven in the case of LC nungesser KG v Commission
it concerned the licencing of maize seed and plant breeders rights a specialist form of intellectual property. the licence granted by the IP owner was territorially open in that the licensor agreed not to compete with licencee but other licencess in other member states could. held - as this did not affect trade, all parallel imports from other member states would be permitted.

27
Q

what happened in the case of computerland SA franchising agent

A

contrast contained a restriction of franchisees rights to open up a business in other franchises territories. the court said this was potentially a breach of article 101 but might well be exemptable under article 101(3) in the call of vertical agreements.

28
Q

what is the rule of reason

A

A power in which particularly the ECJ has to absolve agreements that might otherwise be a breach of article 101/

29
Q

what happened in the case of rema BV v commission

A

court held an underatking not to compete by a seller of a business may not violate 101 if the sale of the business is illusory (an illusion)

30
Q

what happened in the case of delimitis v henniger brau

A

exclusive packagin obligations under a pub tenancy agreement with a brewery was not anti-competitive if it does not prevent access by other brands considering the entire contxt of the market.