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The Modernization of Article 101 and 102 TFEU and Merger Policy over the Last Ten Years Essay Example

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The Modernization of Article 101 and 102 TFEU and Merger Policy over the Last Ten Years

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The Modernization of Article 101 and 102 TFEU and Merger Policy over the Last Ten Years. An agreement does not necessarily have to be a contract in writing.  Agreements can be informal or even surreptitious.  For instance, it was held in Joined Cases C-2/01 P and C-3/01 Bundesverband der Arzneimittel-ImporteureeV and Commission v Bayer [2004] that an agreement in the context of article 101(2):Centres around the existence of a concurrence of wills between at least two parties, the form in which it is manifested being unimportant so long as it constitutes the faithful expression of the parties’ intention. It is obvious from this description of an agreement that Article 101(1) has as its central aim the controlling of and prohibiting of collusion of all types that could distort competition.

  The ECJ has used the term “concerted practice” which effectively broadens the meaning of collusion. In this regard, the ECJ described a concerted practice as a “form of co-operation between undertakings” from which it can be inferred that an agreement was made that compromises competition. It, therefore, follows that some form of coordination and cooperation is required for ascertaining if the undertakings were colluding or engaging in concerted practices. The criteria of co-ordination and co-operation must be understood in the light of the concept inherent in the provision of the Treaty relating to competition that each economic operator must determine independently the policy which he intends to adopt on the Common Market. Contact in furtherance of co-ordination and co-operation will typically be manifested in an exchange of information which is conducted intentionally.   However, conduct can also indicate co-operation and coordination if that conduct is such that it can substantiate concerted practices. Concerted practices are easier to discern in circumstances where the market is oligopolistic and conduct is uniform.  For example, there is an announcement with respect to pricing so that pricing is transparent which is followed by a uniform change in prices and uniform approaches to pricing so that this uniformity cannot be interpreted as merely coincidental.  . The Modernization of Article 101 and 102 TFEU and Merger Policy over the Last Ten Years.

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Bibliography

Textbooks

Howells, G.; Nordhausen, A.; Parry, D. and Twigg-Flesner, C. The Yearbook of Consumer Law 2007. (Ashgate Publishing 2007).

Kaczorowska, A. European Union Law. (Taylor and Francis 2010).

Kokkoris, I. Merger Control in Europe. (Taylor and Francis 2010).

Oinonen, M. Does EU Merger Control Discriminate Against Small Market Companies? (Kluwer Law International 2010).

Papadopoulos, A. The International Dimension of EU Competition Law and Policy. (Cambridge University Press 2010).

Articles/Journals

Albors-Llorens, A. ‘Collective Dominance: A Mechanism for the Control of Oligopolistic Markets?’ (2000) 59 The Cambridge Law Journal 235-272.

Cengiz, F. ‘Milti-Level Governance in Competition Policy: The European Competition Network.’ (2010) 35 European Law Review, 660-677.

Marcos, F. and Graells, A. ‘A Missing Step in the Modernization Stairway of EU Competition Law – Any Role for Block Exemption Regulations in the Realm of Regulation 1/2003?’ (2010) 6(2) The Competition Law Review 183-201.

Soames, T. and Maudhuit, S. ‘Changes in EU Merger Control’. (2005) 26 (1) European Competition Law Review, 57-64.

Table of Cases

BBI-Boosey and Hawkes ]1987] OJ L287/36.

Case T-219/99 British Airways Plc v Commission [2003] ECR 11-5917.

C-95/04P BA v Commission [2007] ECR 1-2331.

Case T-102/96 Gencor v Commission, [1999] ECR II-753.

Case 85/76 Hoffmann-La Roache v Commission [1979] ECR 461.

Case 48/69 Imperial Chemical Industries Ltd. v Commission (Dyestuffs) [1972] ECR 619.

Cases 40-48/73, 50/73, 111/73, 113-114/73 Suiker Unie[1975] ECR 1663.

Case 27/76 United Brands v Commission [1978] ECR 207.

Joined Cases C-395/96P Compagnie Maritime Belge and Others v Commission [2000] ECR 1-1365.

Joined Cases C-2/01 P and C-3/01 Bundesverband der Arzneimittel-ImporteureeV and Commission v Bayer [2004] 4 CMLR 13.

Joined Cases 89, 104, 114, 116, 117 and 125-129/85 Ahlstrom and Others [Re Wood Pulp Cartel] v Commission [1993] ECR 1-1307.

Table of Statutes

Commission Enforcement Priorities in Applying Article 82 of the EC Treaty to Abusive Exclusionary Conduct by Dominant Undertakings 2009.

Horizontal Merger Guidelines 2004

Merger Regulation 139/2004

Regulation 1/2003

Regulation 4064/89 of 1989.

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