Bài tập môn US antitrust and EU competition law

A. The main difference between anticompetitive agreement and collective dominance

Anti-competitive Agreement

Abuse of Dominant position (ADP)

(ACA)
An anti-competitive practice form as An anti-competitive practice, but not
an agreement (whether written, oral an agreement, just the undertakings
Nature

or the conduct) between 2 or more have illegal and harmful exploitations
independent competitors.

Intention
Number of

An

agreement



Bilateral

of the domination position to eliminate
the competitors.
/ A Conduct  Unilateral.

Multilateral.
Must be at least 2, no need to have Can be one only, but it must have the

parties

monopoly power.
+ Price fixing.

Content of the

+ Market division / source of supply

practice

division.

monopoly power.

+ Tying
Open or Secret (in secret form: it is A conduct.
Form

the collusion, or Cartel) agreement.
Can be in written, oral or implied
Not always illegal per se (Không Always illegal per se (Mặc định là
mặc định là phạm pháp, cần xem xét phạm pháp, không cần xem xét, cứ thế
ngoại lệ = Can have exclusion and mà phang = No exclusion, always
open regulations allow to do).

illegal at any cases).

Except Cartel: Always illegal per se

No need to determine the market Need to determine the market power.
Exemption
Leniency
Type

share
Regulated in Article 101.3 TFEU
No exemption.
Yes.
No
Horizontal (Separate, independent Vertical
parties) or Vertical.

Impose

to

the

other

party

in


Agree to do the same conduct to the transaction.
3rd party.
Same as Cartel.

Punishment

B. Đề thi của lớp CLC-40A
I.

Are those following statements correct? Why
1. False
Exemption for agreements between small companies, which together holding no
more than 10% market share, is only applied in EU competition law (de minimis
notice).
2. False
Acquisition is an undertaking/firm (A) acquires more than 50% of shares of
another undertaking/firm (B), which make the acquired firm/undertaking(B)
becomes the subsidiary of the acquiring firm/undertaking.
3. False
DDD is a form of structural remedy: dissolve/divestiture/divore.

II.

Compare “excessive pricing” and “predatory pricing”

Criteria
Type of act
Aim
Act
Effect

III.

Exercise

Excessive pricing
Exploitative abuse
Abuse the dominant position
Achieve the higher profit
Raise the price of products
unreasonably
Cause damage to customer

Predatory pricing
Exclusionary abuse
Attempt to monopolization
Remove the competitors
Lower the price below the
reasonable level
The competitor has to
leave the market
New competitor may join
the market


A
X

F

D

W

E

ACQUIRE

T

Y

C

z
I.

Calculate the turnover of:
 C, D, E, F (Article 5.5 EU Merger regulation 2004)
 A, X, Y, 50% of Z (Article 5.2)

II.

Will announce if satisfy all requirements in Article 1.3

C. Đề thi của lớp CLC-38B
I.

Are the following statements correct? Why?
1. False, also the one firm/undertaking which holds the dominant position/monopoly
2. False
According to the Article 5.2, only the turnover of parent companies of buyer
undertaking is taken to account for calculation of worldwide combined…
3. False

Directives are binding only on the member states to whom they are addressed,
which can be just one member state or a group of them


II.

Compare US antitrust and EU competition law on remedies

Same:
 Both have conduct and structural remedies
 Apply to punish the anti competitive acts, abusing the dominant position, attempt to
monopolize
Criteria
Legal base

US antitrust remedies
US code title 15 section 1 and 2

Monetary damages

 Fines: Maximum $100M for
corporation, $1M for a
person
 Compensation:
treble
damages (3 times the real
damage), awards to the
victim(s)
Can up to maximum 10 years

Prisonment
III.

EU competition law remedies
EU guidelines on the method of setting
fines
 Fines: maximum 10 % of the total
turnover in the preceding business
year of the undertaking or
association
of
undertakings
participating in the infringement
 Compensation: based on real
damage, awards to the victim(s)
No

Exercise
1. What’s this infringement’s name? Why?
IRAC formula:
 Issue: What type of infringement that company A conduct
 Rule: Article 102 TFEU, Article 80, 81, 82 EU guidance on abusive
conduct by dominant undertakings
 Analyze:
o Company A is in dominant position as the supplier in the upstream
market and being a competitor in the downstream market.
o The refusal relates to a product or service that is objectively
necessary to be able to compete effectively on a downstream market:
A is the supplier for the downstream market
o The refusal is likely to lead to the elimination of effective

competition on the downstream market: A raised the price of inputs
in the upstream market so high and lowered its prices to its to


customers in the downstream market, which can harm the other
competitors in lower market, affect the competition.
o The refusal is likely to lead to consumer harm: no information
 Margin squeeze
2. Company A, if doesn’t agree with the decision of the Eu Commission, it can lodge
an appeal to the EU general court.
D. Đề thi lớp CLC-38A
I.

Are the following statement correct? Why
1. False
Antitrust bills are created and drafted by the senate or the house representatives
2. False
The acquired firm/undertaking become the subsidairy of acquiring
firm/undertaking
3. False
Structural remedies in US antitrust and EU competition law require some form of
structural change on the part of the party or parties to whom the measures are
directed.
Not in order to seize any asset of the infriged undertaking

II.

Exercise
1. Discrimination