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The Characterisation of Collusion in Competition Law

The Characterisation of Collusion in Competition Law. 2009 CCP 5th Annual Conference: Cartels and Tacit Collusion. Okeoghene Odudu Emmanuel College, Cambridge. Outline. the role of collusion in competition law distinction between vertical and horizontal collusion

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The Characterisation of Collusion in Competition Law

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  1. The Characterisation of Collusion in Competition Law 2009 CCP 5th Annual Conference: Cartels and Tacit Collusion Okeoghene Odudu Emmanuel College, Cambridge

  2. Outline • the role of collusion in competition law • distinction between vertical and horizontal collusion • the characterisation of collusion a horizontal rather than vertical • hub-and-spoke concept

  3. The Text of Article 81(1) EC ‘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 … restriction … of competition’

  4. The Text of Article 81(1) EC ‘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 … restriction … of competition’

  5. The Text of Article 81(1) EC ‘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 … restriction … of competition’

  6. The Text of Article 81(1) EC ‘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 … restriction … of competition’

  7. The Text of Article 81(1) EC ‘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 … restriction … of competition’

  8. Scope Substance Justification The Structure of Article 81 Entities Conduct Obligations

  9. The vertical/horizontal distinction • a different mode of assessment applies object (per se) effect (rule of reason) de minimis presumptions BER (justifications) • Different sanctioning regime applies

  10. PepsiCo v Coca-Cola IFD IFD IFD

  11. PepsiCo v Coca-Cola IFD IFD IFD

  12. PepsiCo v Coca-Cola IFD IFD IFD

  13. Toys "R" Us v Federal Trade Commission

  14. Toys "R" Us v Federal Trade Commission • conditional participation • the hub monitors compliance

  15. Argos and Littlewoods v Office of Fair Trading

  16. Argos and Littlewoods v Office of Fair Trading

  17. Argos and Littlewoods v Office of Fair Trading • conditional participation • interdependent agreements • the hub: • exchanges information • monitors compliance

  18. JJB Sports v Office of Fair Trading

  19. JJB Sports v Office of Fair Trading [i] retailer A discloses to supplier B its future pricing intentions in circumstances where [ii] A may be taken to intend that B will make use of that information to influence market conditions by passing that information to other retailers (of whom C is or may be one), [iii] B does, in fact, pass that information to C in circumstances where [iv] C may be taken to know the circumstances in which the information was disclosed by A to B and [v] C does, in fact, use the information in determining its own future pricing intentions,

  20. The Characterisation of Collusion in Competition Law 2009 CCP 5th Annual Conference: Cartels and Tacit Collusion Okeoghene Odudu Emmanuel College, Cambridge

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