European Competition Law provides a wide-ranging review of the European rules relating to competition: restrictive agreements, abuse of a dominant position, impact of intellectual property rights, procedure, merger control, State aid.

European Competition Law

Legal theory is divided on the question of whether the previous case-law of the Court of Justice applying Articles 101  and 102  to concentrations is still valid despite the regulation. In respect of the principles involved, it clearly appears from the provisions of the regulation that its authors wished to remove from the scope of application of Articles 101 and 102, not only concentrations falli …

Indirect control

Legal theory is divided on the question of whether the previous case-law of the Court of Justice applying Articles 101  and 102  to concentrations is still valid despite the regulation. In respect of the principles involved, it clearly appears from the provisions of the regulation that its authors wished to remove from the scope of application of Articles 101 and 102, not only concentrations falling within the scope of application of the Regulation, but also those that would not fall within its scope of application because they do not have an EU dimension. Therefore, Article 21(1) provides, “This regulation alone shall apply to concentrations as defined in Article 3”, i.e. regardless of whether they exceed the thresholds defined in Article 1. The regulation adds that the regulations implementing Articles 101 and 102 shall not apply, except in relation to joint ventures that do not have an EU dimension and which have as their object or effect the coordination of the competitive behavior of undertakings that remain independent. By contrast, it should be pointed out that the previous case law of the Court of Justice is in no way affected by the regulation which even refers to it in the recitals (point 7), and it seems that only an amendment to the Treaty could result in excluding concentrations from the scope of application of those regulations. In theory, Articles 101 and 102 therefore still apply to merger transactions taking place after the coming into force of Regulation No 139/2004.

In a preliminary ruling on this question, the Court of Justice held that the ex-ante control of mergers with a European dimension established by Regulation No 139/2004 does not preclude ex-post control of mergers below this threshold. Indeed, while Regulation No 139-2004 is intended to apply exclusively to mergers of undertakings involving major structural changes whose effect on the market extends beyond the national borders of a Member State, it does not render irrelevant the control carried out at national level of a merger transaction under Article 102 TFEU. Furthermore, the direct applicability of a provision of primary law, such as Article 102 TFEU, which unconditionally prohibits abuses of a dominant position, cannot be ruled out by the adoption of an act of secondary legislation targeting certain types of conduct by undertakings on the market, such as Regulation No 139/2004. It follows, in the Court's view, that Article 21 of Regulation No 139/2004, which governs the scope of the regulation as regards the examination of mergers in relation to that of other EU secondary legislation on competition, does not preclude a merger which does not have a European dimension, below the thresholds for ex ante control laid down by national law, and which has not given rise to a referral to the Commission pursuant to Article 22 of said regulation, from being analyzed by a national competition authority as constituting a prohibited abuse of a dominant position under Article 102 TFEU with regard to the structure of competition on a market with a national dimension .

Case 142/84 BAT and Reynolds v Commission [1986] ECR 1899, LawLex200500004282JBJ.

Commission Decision No 72/21/EEC of 9 December 1971, Continental Can Company (not available in English); Case 6/72 Europemballage Corporation and Continental Can Company v Commission [1973] ECR 215, LawLex200400002771JBJ.

Case C-449/21 Towercast SASU, Judgment of 16 March 2023, LawLex202300003892JBJ.

European Competition Law

320. Indirect control

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

320. Indirect control

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise