Competition Policy

ISSN 1025-2266 COMPETITION POLICY NEWSLETTER EC COMPETITION POLICY NEWSLETTER Editors: 2006 Æ NUMBER 1 Æ SPRING Thomas Deisenhofer Jean Huby Published three times a year by the Competition Directorate-General of the European Commission Address: European Commission, J-70, 04/226 Also available online: Brussel B-1049 Bruxelles http://europa.eu.int/comm/competition/publications/cpn/ Tel.: (32-2) 295 76 20 Fax: (32-2) 295 54 37 World Wide Web: http://europa.eu.int/comm/ competition/index_en.html I N S I D E : • Green Paper on damages actions • Discussion paper on abuse of dominance • European Competition network news • Energy sector inquiry — first results • Digital TV • New guidelines on national regional aid for 2007–2013 • Chief economist section MAIN DEVELOPMENTS ON • Antitrust — Merger control — State aid control EUROPEAN COMMISSION Contents Articles 1 Green Paper on damages actions for breach of the EC antitrust rules by Eddy DE SMIJTER, Constanze STROPP and Donncadh WOODS 4 Commission publishes discussion paper on abuse of dominance by Luc PEEPERKORN 8 The European Competition Network Achievements and challenges — a case in point: leniency by Céline GAUER and Maria JASPERS 12 European Energy Sector — Quo vadis? First results of the Sector Inquiry by Iain OSBORNE and Augustijn VAN HAASTEREN 18 New guidelines on national regional aid for 2007–2013 by Paraskevi PAPANTONIOU Opinions and comments 23 The Commission’s state aid policy on the digital switchover by Christof SCHOSER and Sandro SANTAMATO 28 How to strengthen competition advocacy through competition screening by Geraldine EMBERGER 33 Regulation of electronic communications — time for a review? by Dirk GREWE and András G. INOTAI Competition day 41 Competition day in Vienna 19 June 2006 Antitrust 43 The Commission proposes to repeal the Liner Conference Block Exemption by Fabrizia BENINI and Carsten BERMIG 49 Parallel import of motor vehicles: the Peugeot case by Christophe DUSSART 52 Competition issues in waste management systems by Philip KIENAPFEL and Gerald MIERSCH Cartels 57 Developments in cartel case-law: Commission decisions and Court judgments of 2005 by Milan KRIŠTOF 61 La Commission inflige une amende de 290 millions d’euros à seize entreprises du secteur des sacs industriels, pour participation à un cartel par Jean-Jérôme JUNG et Isabelle KRAUSS 64 Commission fines nine companies a total of € 43.5 million for participating in industrial thread cartels by Elodie CLERC 66 Commission fines 3 undertakings a total of € 76 million for participating in rubber chemicals cartel by Erja ASKOLA Merger control 69 Merger control: Main developments between 1 September and 31 December 2005 by Mary LOUGHRAN and John GATTI 73 A combination of gas release programmes and ownership unbundling as remedy to a problematic energy merger: E.ON / MOL by Csilla BARTOK, Sophie MOONEN, Pierre LAHBABI, Alessandro PAOLICCHI and Miguel DE LA MANO 84 Consolidation in container liner shipping — Merger control aspects by Fabrizia BENINI, Richard GADAS and Gerald MIERSCH State aid 89 La filialisation des services financiers de La Poste (France): une application concrète de la jurisprudence Chronopost par Bernadette FRÉDÉRICK 93 Commission rules subsidy for digital terrestrial television (DVB-T) in Berlin-Brandenburg illegal by Christof SCHOSER 97 State aid to digital decoders: proportionality is needed to meet common interest by Sandro Santamato and Matteo SALTO 100 The restructuring of Huta Czestochowa — the Commission’s decision finding compliance with private creditor test but ordering recovery of some previously granted restructuring aid by Max LIENEMEYER 102 Commission’s suspension injunction against illegal tax exempt fund in Greece by Radoš HORÁČEK 103 Exemptions from the fuel excise tax for alumina production by Anne Theo SEINEN and Céline GUILLEMAUT Chief Economist team 105 Applying the Market Economy Investor Principle to State Owned Companies — Lessons Learned from the German Landesbanken Cases by Hans W. FRIEDERISZICK and Michael TRÖGE 111 News from the Chief Economist Team 113 Information section Competition Policy Newsletter Green Paper on damages actions for breach of the EC antitrust rules ARTICLES Eddy DE SMIJTER, Constanze STROPP and Donncadh WOODS, Directorate-General Competition, unit A-1 A. Introduction 2005 (1). The Green Paper demonstrates the Com mission’s desire to facilitate damages actions for The competition rules of Articles 81 and 82 EC infringement of antitrust law. The Commission can be enforced both by competition authori wishes to facilitate this kind of actions, because ties (public enforcement) and by private par they serve a double purpose. Not only do dam ties who bring their case before a national court ages actions allow victims of competition law (private enforcement). Until recently, enforcement infringements to be compensated, but they also of the EC competition rules was largely limited create an additional incentive for undertakings to to decisions taken by the Commission. That respect the EC competition rules. Indeed, damages enforcement image led victims of competition actions are not only meant to toughen the finding law infringements to address themselves prima of an infringement by a competition authority. rily to the Commission. This has some drawbacks. They should first and foremost be an autonomous Complaints addressed to the Commission can not means of enforcement in the hands of the victims always be pursued, since the Commission can only of competition law infringements. Seen in this handle a limited number of cases. It thus has to light, private enforcement of the EC competition prioritise its case load. Moreover, the Commission rules, particularly antitrust damages actions, is a only has the tools foreseen in Regulation 1/2003 to tool to widen the scope of enforcement of Articles address and to restore competition law infringing 81 and 82 EC. Moreover, by being able effectively behaviour. to bring a damages claim, individual firms or con sumers in Europe become directly engaged in the In order to remedy these drawbacks the Commis enforcement of the competition rules. Such first sion proposed in 2000 to revitalise the joint hand experience increases the direct relevance of responsibility it has together with national courts the competition rules for firms and consumers. In and national competition authorities (NCAs) to its 2001 Courage judgement, the Court of Justice enforce the EC competition rules. The resulting confirmed that victims of an infringement of the Regulation 1/2003 clearly underlines that joint EC antitrust rules have a right to claim damages responsibility and gives the necessary tools to and that Member States have to provide for a achieve the objective of an increased and coherent procedural framework allowing for an effective 2 enforcement of the EC competition rules. With system of redress ( ). regard to public enforcement, the Commission and the NCAs now work closely together within The Commission considered it appropriate to the ECN (European Competition Network) to adopt a Green Paper on damages actions for apply the EC competition rules. With regard to breach of the EC antitrust rules because there have private enforcement, Regulation 1/2003 fully been very few damages awards for breach of EC enables national courts to apply the EC competi antitrust law so far (3). Many of the victims of anti tion rules by abolishing the Commission exemp trust infringements seem to refrain from bringing tion monopoly, thus empowering national courts damages actions. Moreover, where they do bring to apply Articles 81 and 82 EC in their entirety. As damages claims, such actions often fail to be suc a result, victims of competition law infringements cessful for a variety of reasons. The Green Paper can now address themselves to the Commission, identifies the main obstacles to a more efficient NCAs or national courts, depending on which authority they consider most appropriate to deal (1) The Green Paper can be found at http://europa.eu. with the case. However, when it comes to award int/comm/competition/antitrust/others/actions_for_ ing damages to the victims of competition law damages/gp.html. It is accompanied by a Commission staff infringements, national courts have an exclusive working paper, available at http://europa.eu.int/comm/ competition/antitrust/others/actions_for_damages/sp. competence. html, which gives background to and elaborates the political options mentioned in the Green Paper. (2) Case C453/99 Courage v Crehan [2001] ECR I6297. B. The Green Paper (3) See the study that was commissioned by the Commis sion and published in 2004, available at http://europa.eu. Antitrust damages actions are the focus of the Green int/comm/competition/antitrust/others/actions_for_ Paper the Commission adopted on 19 December damages/study.html. Number 1 — Spring 2006 1 Articles system of damages claims and sets out, for further may be in a position to mitigate its economic loss reflection and possible action, different options to by passing on the overcharge to its own customers. remove or diminish these obstacles. The damage caused by anticompetitive behav iour may therefore be distributed down the supply C. The main issues chain or may even be suffered in its entirety by the ultimate purchaser, the final consumer. The Green 1. Access to evidence Paper asks the question whether the infringer should be allowed to raise such a passingon as a Actions for damages in antitrust cases regularly defence. Similarly, it addresses the issue of stand require the presentation of a broad and complex ing for the indirect purchaser and ultimately for range of factual evidence. The particular difficulty the consumer, to whom the overcharge may or of this kind of litigation is that the relevant evidence may not have been passed on. is often not easily available to the injured party, for example because it is held by the party committing the anticompetitive behaviour or by third parties. 5. Defending consumer interests Questions of access by victims to such evidence The Green Paper also addresses the situation of are key to making damage claims more effective.

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