BIBLIOGRAPHY: HUBERT Patrick, LEPPARD Marie and LÉCROART Olivier, Larcier/Bruylant, collection Concurrences, 2014, 300 p.

Day-to-Day Competition Law: A Practical Guide for Businesses, Patrick HUBERT, Marie LEPPARD and Olivier LÉCROART

Patrick Hubert, Marie Leppard, Olivier Lécroart

Day-to-Day Competition Law: A Practical Guide for Businesses, HUBERT Patrick, LEPPARD Marie and LÉCROART Olivier, Larcier/Bruylant, collection Concurrences, 2014, 300 p.

The authors of this book of eleven chapters are legal practitioners in competition law and they are used to advise clients on competition law issues. This is a guarantee of a realist and experienced approach about the competition issues arising in the daily practice of the companies.

In chapter 1, the book answers the “why, who and how” questions about competition law by analyzing competition law through history and geography, by providing an interesting picture about the competition authorities as fashion victims, and by questioning how economic theory can explain the basics of competition law.

In chapter 2, the authors look at the implementation of competition law by questioning the identity and the activity of the competition authorities and by presenting the working of these authorities from the opening of cases to the outcome with in between dawn raids, visits and requests for information, investigations, statement of objections and interim measures. Also, they study the penalties and question who has to pay the bill according to the principle that parent companies are generally liable. At the same time, they take into consideration the case of liability of successor companies. Finally, they deal with the risks of follow-on claims and private enforcement and they recall that enforcers are human beings.

In chapter 3, they analyze the cartels and other collusive behaviors. They came to the conclusion that one should never get involved in a cartel, since it can cause damages. They beware the companies that in case of detection of a cartel, there is prosecution. Next, they stress that cartels can take many shapes and forms, such as price-fixing, market-sharing, limiting output or sales and bid-rigging (also known as collusive tendering). Finally, they give tips on how to avoid and terminate cartels.

In chapter 4, they beware the companies of exchanging sensitive information, since this potentially constitutes a new serious legal infringement and it can be seen as a cartel under certain circumstances. Also, they point out that it can never be assumed that exchanges of past information are always safe. It depends on the market structure and the characteristics of past information exchanged. Next, they give practical tips by pointing out the main dangers and the mistakes to be avoided in the exchange of sensitive information. Moreover, they study the case of trade associations with the dangers of “mission-creep.” Finally, “hub and spoke” arrangements are analyzed by the authors.

In chapter 5, they advise the companies how to behave as a market leader and outline the treatment of monopolies/dominant companies under competition law (outline of the key rules, consequences of infringement with the concept, investigating abuses of dominant position and the consequences of being found guilty). Next, they stress the challenge of identifying a dominant position and market shares. To this aim, they explain different concepts: the relevant product market, the relevant geographic market with the market structure, the barriers to entry and expansion, the countervailing buying power and the collective dominance. Moreover, they advise how a company has to behave when it is dominant and how it can avoid exclusionary abuses and exclude competitors from the market unfairly. Plus, they point out that the non-pricing practices (exclusivity obligations, tying or bundling and refusal to supply), the pricing practices (predatory pricing, rebates and margin squeeze) and exploitative abuses should also be avoided.

In chapter 6, the authors deal with resale price maintenance and question the potential anti-competitive effects of resale price maintenance agreements and the reason why companies might still seek to conclude them. Also, the authors analyze the prohibition of resale price maintenance agreements under the EU with the practice of the competition authorities. Plus, they advise the companies to avoid resale price maintenance agreements by being indifferent to the price at which their products are resold, by influencing the resale price of their products without a resale price maintenance agreement and by controlling the entire commercial chain without using distributors. Finally, they present the termination of a resale price maintenance agreement while approaching the competition authorities, acting jointly and unilaterally.

In chapter 7, the authors concentrate on the realm of pros and cons of commercial contracts. They question the reasons why contracts must comply with competition law and underline that a balance should be found for the restrictive clauses in commercial contracts. Moreover, they answer the question of when contracts between non-competitors trigger the “alarm” by presenting supply agreements and distribution agreements (exclusive distribution, selective distribution, single-branding distribution, de facto single-branding and franchise agreements). Besides, they give an overview of agreements with competitors (joint purchase agreements, joint production agreements and joint commercialization agreements) and they point out the problems and solutions. They also take into consideration specific agreements (research and development, transfer of intellectual property and standardization). Finally, they mention safe harbors, the de minimis rule and agreements of minor importance which allow companies to establish their own safety rules for their most common contracts.

In chapter 8, the authors underline the behavior to be adopted by companies during dawn raids (interviews and document management). According to the authors, the company should detect risks in advance.

In chapter 9, the authors look at mergers, acquisitions and joint ventures. They stress that identifying a “merger” for the purposes of the merger control regime is not what the company might expect. Also, they mention the different types of notifiable transactions (acquisition of a full control by a single company, acquisition of an influence by a single company, acquisition of a joint control by several companies and creation of a joint venture). Next, they analyze the reasons for which competition authorities control notifiable transactions and they advise companies to be preventive in this regard. Moreover, they analyze horizontal/vertical transactions and conglomerate effects. They propose a way to obtain authorization from the competition authorities. In addition, they explain the notification to the relevant competition authorities, the suspension of the transaction and the timetable of the merger control process. Furthermore, they inform companies about the assessment of the competition authorities for the transaction (market definition, competitive and problematic effects, unilateral or [non-] coordinated effects in a horizontal transaction, vertical non-coordinated or coordinated effects and conglomerate effects). Plus, they address the forms of remedy and the structural and behavioral commitments. They conclude with the practical implications of merger control with its uncertainty, upsides and downsides.

In chapter 10, the authors advise how companies must behave in relation to merger control with the involvement of their lawyers from the outset and the decision where to notify their transaction. Also, companies must check whether the planned deal is a “notifiable transaction” and identify the relevant thresholds and the variable time frames. Moreover, the authors call companies to make sure and identify the problem at an early stage and to interact with the competition authorities.

In chapter 11, the authors compare antitrust to a sea and recall how to navigate while referring to the evolving role of economists with the application of econometric tests which may provide a simple answer to a practical question. According to the authors, new economic thinking forges new paths in EU competition law.

To summarize, this book has the merit to be truly unique by offering practical tips to companies in their daily business management. By following tailored advice contained in this contribution, the companies will avoid infringements of competition rules and will adopt the right behavior for their strategy in many commercial and financial projects. Moreover, this book takes various situations into consideration (before an infringement of EU competition law has taken place and during the investigation of the competition authority) while clarifying the complexity of competition law.

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David Leys, Day-to-Day Competition Law: A Practical Guide for Businesses, Patrick HUBERT, Marie LEPPARD and Olivier LÉCROART , May 2014, Concurrences Review N° 2-2014, Art. N° 65176, pp. 248-249

Editor Bruylant

Date 25 March 2014

Number of pages 300

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