© F-D & B, 2000 The facts speak for themselves Comparisons to EU Competition Law Presented by Jürgen Brandstätter Vienna, Austria October 13, 2000

© F-D & B, 2000 The facts speak for themselves âIndustrialisation and cartelisation go hand in hand âRigid Sherman Act 1890 with treble damages and criminal penalties âGerman “Sächsisches Holzschutzkartell”- decision: cartels are desirable Comparisons to EU Competition Law

© F-D & B, 2000 The facts speak for themselves âDifferent attitude of Austrian legal practice, first European draft of a cartel law in Austria in 1897 âIG-Farben was the world´s largest group of undertakings from 1925 to 1951/52 âRegistration principle in Austria 1951, prohibition principle in Germany 1958 Comparisons to EU Competition Law

© F-D & B, 2000 The facts speak for themselves âSpecial feature of EC competition law: ”Single Market integration” âApplication of EC competition law only, if interstate trade effect âEuropean Commission shares with national courts the competence in terms of Art. 81 (1) (2) ECT and the block exemptions Comparisons to EU Competition Law

© F-D & B, 2000 The facts speak for themselves âEuropean Commission: US-approach of ”effects doctrine” âEuropean Court of Justice still indecisive as to “effects doctrine” Comparisons to EU Competition Law

© F-D & B, 2000 The facts speak for themselves âSeemingly all embracing wording of US and EC cartel provisions âUS courts apply ”rule of reason” âArt. 81 (3) ECT militates against the adoption of a rule of reason under EC competition law âWide approach of the European Court of Justice as to Art. 81 (1) ECT, only limited exceptions Comparisons to EU Competition Law

© F-D & B, 2000 The facts speak for themselves âUS-principle of ”per se-illegality” not part of EC competition law âFramework of criteria under Art. 81 (3) ECT for individual exemption âAgreements that restrict competition need an exemption in order not to be void under Art. 81(2) ECT âIndividual exemption procedure: extremely cumbersome and projected Comparisons to EU Competition Law

© F-D & B, 2000 The facts speak for themselves âSeveral block exemptions issued by the European Commission: no need for notification âBrand new block exemption on vertical restraints (No. 2790/99) âCommission proposal for direct application of Art. 81 (3) in the Member States: problem of legal certainty Comparisons to EU Competition Law

© F-D & B, 2000 The facts speak for themselves âNo exemption for an abuse of a dominant position âUnlike Sherman Act no prohibition of unilateral conduct with the intention to monopolise under EC competition law; only abuse of a dominant position already existing is forbidden âAcceptance of the US doctrine of ”essential facility” by the European Court of Justice Comparisons to EU Competition Law

© F-D & B, 2000 The facts speak for themselves âFour main principles of the EC merger regulation: -”Community dimension” -”one-stop-merger control” -”preventive control” -decisiveness of market structure âOnly creating or strengthening of a dominant position inadmissible under EC competition law; under US antitrust law the danger of considerable lessening of competition is sufficient Comparisons to EU Competition Law