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“Which types of infringements are considered to be per se, if any ?”
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Austria-
The types of per se infringements are the same as under EC competition law.
Case law : Upper Cartel Court - OGH 16 Ok 51/05)Stephan Polster, Dorda Brugger Jordis (Vienna), Antitrust encyclopedia: Austria, November 2007Question.: 547 Pays.....: 137 Article..: 19326
Belgium-
There are no infringements likely to be considered as “per se” under the Competition Act. Hardcore restrictions on competition such as price-fixing, allocation of markets or sales shall always be prohibited.
Geert A. Zonnekeyn, Monard D’Hulst (Kortrijk), Antitrust encyclopedia: Belgium, November 2007
Question.: 547 Pays.....: 6 Article..: 18801
Bulgaria-
Article 9 of PCA (Bulgarian Protection of Competition Act)imposes a general prohibition on any agreements between undertakings, decisions by associations of undertakings, as well as concerted practices of two or more undertakings, having as their object or effect the prevention, restriction or distortion of competition within the market concerned, such as :
directly or indirectly fixing of prices, or other trading conditions ;
sharing markets or sources of supply ;
limiting or controlling production, trade, technical development or investments ;
applying of dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage ;
making the conclusion of contracts subject to acceptance by the other party of additional obligations, or to the conclusion of additional contracts which, by their nature or according to commercial usage, are not linked to the subject-matter of the main contract, or with the performance thereof.
The above-said types of agreements and decisions are ex lege regarded to be null and void. (Commission Decisions No. 174/2006 ; No. 136/2006 ; No. 80/2006).
See for example : Ivan Gurov, The Bulgarian competition authority prohibits an exclusive contract for the supply of slag for fears of foreclosure of the cement market (Kremikovtzi/Cemeco), 22 July 2006, e-Competitions, www.concurrences.comPetko Georgiev Nikolov, Bulgarian Commission for Protection of Competition (Sofia), Antitrust encyclopedia: Bulgaria, November 2007Question.: 547 Pays.....: 339 Article..: 15993
Croatia-
The types of per se infringements are the same as under EC competition law.
J. Pecotić Kaufman, University of Zagreb, Faculty of Economics and Business, Antitrust encyclopedia: Croatia, July 2009
Question.: 547 Pays.....: 698 Article..: 28107
Cyprus-
The type of infringements that are considered per se under the Protection of Competition Law 2008 (Law no. 13(I)/2008 can be found in sections 3 and 6 which provide :
3.-(1) Subject to the provisions of sections 4 and 5, all agreements between undertakings or association of undertakings, all decisionsby association of undertakings and concerted practices that have as an object or effect the prevention, restriction or distortion of competition within the Republic are prohibited and particularly those which : (a) fix, directly or indirectly, the purchase or reselling prices or other terms of transaction ;
(b) restrict or controls production, supply, technological development or investments ; (c) distributes geographically or otherwise the markets or other resources of supply ; (d) apply different terms for identical transactions so that certain enterprises are placed at a disadvantageous position regarding competition ; (e) make the entering into contracts conditional upon the acceptance by the other parties of additional obligations which by their nature or according to commercial usage have no connection with the subject-matter of these contracts, shall be prohibited. (2) Subject to the provisions of sections 4 and 5, agreement, decision and concerted practices, referred in subsection (1) of the present section, are void ab initio, non prio decision to that effect being required.
6.-(1) Any abuse by one or more undertakings of a dominant position within the national market or in a substantial part of it, shall be prohibited, especially if the act has as an effect or possible effect :-
(a) the direct or indirect fixing of unfair purchase or selling prices or other unfair, under the circumstances, terms of transaction ; (b) the restriction of production or supply, or of the technological development to the loss of the consumers ; (c) the application of different terms for identical transactions, the result of which is that certain enterprises are placed in a disadvantageous position in respect of competition ; (d) the making of contracts conditional upon the acceptance by the other parties of additional obligations which by their nature or according to commercial usage, have no connection with the subject-matter of these contracts.
(2)The abuse by one or more undertakings of the financial relations of dependency between one or more such undertakings and an undertaking which is a customer, supplier, producer, representative, distributor or commercial co-operator thereof, even regarding a particular kind of product or services, and which does not have a corresponding alternative solution, is prohibited. Such an abuse of the financial relationship of dependency may consist especially of the imposition of arbitrary terms of transaction, discretionary treatment, the discontinuance of commercial relations by the assumption or transfer of the activities developed in a way which substantially influences competition, or the sudden and unjustified discontinuance of long term commercial relations.
Case law : Antigoni Lykotrafiti, The Cyprus Competition Authority imposes a fine on three pay-TV operators for restrictive exclusive distribution agreements (Channel LTV...), 6 June 2006, e-Competitions, www.concurrences.com
Antigoni Lykotrafiti, The Cyprus Competition Authority imposed a fine on three banking institutions for coordination of their interest rates (Bank of Cyprus/Cyprus Popular Bank/Hellenic Bank), 22 June 2004, e-Competitions,www.concurrences.com
Costakis Christoforou, Cyprus Commission for Protection of Competition (Nycosia), Antitrust encyclopedia: Cyprus, November 2007Question.: 547 Pays.....: 7 Article..: 16267
Czech Republic-
Czech competition law does not recognise per se infringements. Even actions such as price fixing, market sharing or bid rigging can be in theory justified in case conditions of Article 3 para 4 of Competition Act are met, i.e. in case they :
a) contribute to improving the production or distribution of goods or to promoting technical or economic progress while allowing consumers a fair share of the resulting benefit,
b) do not impose on the undertakings restrictions which are not indispensable to the attainment of the objectives pursuant to letter a),
c) do not afford the undertakings the possibility of eliminating competition in respect of a substantial part of the market of goods, the supply or purchase of which constitutes the object of the agreement.
Vladimira Glatzova, Glatzova & Co (Prague), Antitrust encyclopedia: Czech Republic, November 2007
Question.: 547 Pays.....: 8 Article..: 16516
Denmark-
To fix purchase or selling prices or other trading conditions, to limit or control production as well as bid rigging are all considered hard-core infringements of competition law.
Camilla Jain Holtse, Bech Bruun (Aarhus), Christian Nielsen, Bech Bruun (Aarhus), Antitrust encyclopedia: Denmark, November 2007
Question.: 547 Pays.....: 9 Article..: 16723
Estonia-
The infringements listed in Article 4(1) Competition Act are considered to be per se infringements, of which the first three are hardcore restrictions (e.g. they do not fall under the de minimis provisions).
Tanel Kalaus, Raidla & Partners (Tallinn), Antitrust encyclopedia: Estonia, November 2007
Question.: 547 Pays.....: 89 Article..: 16978
Finland-
The Competition Act is interpreted in line with the EC Competition Law and therefore per se restrictions are also in line with the practice concerning EC Competition Law. In horizontal practices fixing prices, sharing markets or customers, limiting output are considered as per se restrictions. In vertical agreements fixing retail prices or imposing minimum retail prices are per se restrictions. In Asphalt case the FCA found that the parties were limiting output by imposition of annual tonnage for asphalt production and allocated markets in tendering processes. In the case concerning Oy Arwidson Ab, HL Group Oy, Koivunen Oy, the FCA suspects that the parties have engaged themselves into price fixing. In its proposal to the Market Court the FCA alleges that the parties have agreed on cutting off rebates for a customer. This was regarded as hard core restriction in the FCA’s proposal.
Katri Joenpolvi, Krogerus (Helsinki), Antitrust encyclopedia: Finland, November 2007
Question.: 547 Pays.....: 33 Article..: 18747
France-
There are no infringements likely to be considered as “per se” under Article L. 420-1 Commercial Code. However, in practice, hardcore restrictions on competition (e.g., price-fixing, limitation of output or sales, allocation of markets or sales, restrictions on passive sales outside the territory of an exclusive distributor to end customers) shall always be prohibited and unlikely to be exempted.
Christophe Clarenc, Latham & Watkins (Paris), Frédéric Pradelles, Latham & Watkins (Paris), Antitrust encyclopedia: France, November 2007
Question.: 547 Pays.....: 10 Article..: 15601
Germany-
The only per se prohibition de jure is the criminal provision against bid rigging in § 298 Criminal Code (“StGB”).
With this exception, in the context of horizontal and vertical restraints, there is no “per se”-prohibition as such ; theoretically, all other restraints can be exempted if the requirements of the relevant exemption provisions (namely, §§ 2, 3 of the Act against Restraints of Competition (“ARC”)) are met. However, it is extremely unlikely that naked hardcore restraints (such as price fixing or customer/market allocations) will ever meet the requirements of the provisions on exemption. De facto, such naked hardcore restraints are prohibited per se.
Florian Wagner-von Papp, University College (London), Antitrust encyclopedia: Germany, November 2007
Question.: 547 Pays.....: 11 Article..: 17437
Greece-
The Hellenic Competition Commission uses the term “very serious infringements”. Such are the agreements to fix prices, limit output or sales, allocate markets or clientele, set minimum resale prices or prohibit passive sales.
Yannis Stamoulis, Coca-Cola (Athens), Antitrust encyclopedia: Greece, November 2007
Question.: 547 Pays.....: 90 Article..: 17166
Hungary-
Hard-core cartels are considered illegal per se.
Bálint Bassola, Hungarian Competition Authority (Budapest), Antitrust encyclopedia: Hungary, November 2007
Question.: 547 Pays.....: 13 Article..: 18611
Ireland-
Under Section 5, there are no per se infringements. The only per se infringements are found in Section 4. They are price fixing, limiting output on sales, market-sharing and collusive tendering.
William Prasifka, Irish Competition Authority (Dublin), Antitrust encyclopedia: Ireland, November 2007
Question.: 547 Pays.....: 14 Article..: 17455
Italy-
The ICA (the Italian Competition Authority) considers hardcore restrictions to be per se prohibited.
Enrico Adriano Raffaelli, Rucellai & Raffaelli (Milano), David Ottolenghi, Rucellai & Raffaelli (Milano), Antitrust encyclopedia: Italy, November 2007
Question.: 547 Pays.....: 15 Article..: 17910
Latvia-
Agreements relating to price fixing, market and customer allocation between competitors, output restrictions, collusive tenders, group boycotts and any agreement that stipulates a fixed or minimum resale price at which the distributor has to sell the supplied goods infringes per se Article 11 of the Competition Law.
Mikus Buls, University College (London), Antitrust encyclopedia: Latvia, November 2007
Question.: 547 Pays.....: 91 Article..: 18290
Lithuania-
Agreements between competitors regarding price fixing, market sharing, restriction of output, and the application of discriminatory conditions to other trading partners are always considered as restricting competition (Article 5), but, unlike the US-style per se infringements, they may be exempted (Article 6).
Šarūnas Keserauskas, Office of fair trading, Antitrust encyclopedia: Lithuania, November 2007
Question.: 547 Pays.....: 92 Article..: 18125
Luxembourg-
Insofar as an agreement between undertakings has the object of restricting competition, there is no need to examine whether it also has the effect of restricting it.
Myriam Pierrat, Elvinger, Hoss & Prussen (Luxembourg), Antitrust encyclopedia: Luxembourg, October 2009
Question.: 547 Pays.....: 93 Article..: 16738
Malta-
Rule 13 of the Schedule to the Act directs the CFT to have regard, in the interpretation of the Act, to judgements of the Court of First Instance and the Court of Justice of the European Community, as well as to decisions and statements of the European Commission including interpretative notices related to competition law. In effect, this has led to both the OFC and the CFT adopting an approach which is similar to that adopted by the European Commission and the European Courts. In particular, the CFT has considered, inter alia, the following to be per se infringements : a. Agreements to fix prices (Supermarkets, Case 2/2004) ; b. Collusive tendering (Hot Asphalt, Case 3 of 2000). In addition to the above, in Buxom Poultry Ltd vs Koperatttiva tat-Tjur Limited et, Case 3/2005 the CFT has - perhaps contrary to current thrust of EC competition law - characterised as anticompetitive “by its very nature” an agreement between an undertaking involved in the breeding, slaughtering and processing of broilers, and several undertakings involved in the breeding of broilers whereby the latter undertakings were obliged to sell their reared and fattened broilers exclusively to the former.
Adrian Mallia, Camilleri Preziosi (Valletta), Antitrust encyclopedia: Malta, November 2007
Question.: 547 Pays.....: 94 Article..: 18448
The Netherlands-
Participation in a hardcore cartel is considered per se illegal. Article 6 does not provide specific examples of restrictive clauses. In practice, however, any agreement which fixes prices, limits output, or shares markets, customers or sources of supply will almost inevitably be considered to infringe Article 6. Horizontal price-fixing agreements, collective vertical price fixing, collective boycotts and horizontal agreements aimed at partitioning markets or quota schemes (including limitation of sales and prohibited tendering agreements - ‘bid rigging’) are regarded by the NMa as very serious infringements of the competition rules.
Martijn Snoep, Debrauw (The Hague), Antitrust encyclopedia: The Netherlands, November 2007
Question.: 547 Pays.....: 16 Article..: 19049
Poland-
Participation in cartel is illegal per se.
Marta Skrobisz, Polish Office of Competition and Consumer Protection (Varsaw), Mateusz Blachucki, Polish Office of Competition and Consumer Protection (Varsaw), Antitrust encyclopedia: Poland, November 2007
Question.: 547 Pays.....: 17 Article..: 19011
Portugal-
None. When enforcing the Portuguese Competition Act provisions on anticompetitive practices, the Portuguese Competition Act is bound to assess the object and the effect of such practices in the market, the practices being prohibited if they significantly restrict competition (“...of which the object and effect is appreciably to prevent, distort or restrict competition...”, article 4/1). Furthermore, anticompetitive practices whose object is not restrictive per se (for example, other than hardcore cartels), may be exempted under article 5 due a positive economic assessment.
Teresa Moreira, Portuguese Directorate-General for Economic Activities (Lisbon), Antitrust encyclopedia: Portugal, November 2007
Question.: 547 Pays.....: 95 Article..: 17974
Romania-
Per se infringements are referred to as ‘hard -core’ restrictions and cover the type of conduct that always infringes competition provisions, irrespective of the market share of the concerned undertakings. Such infringements include agreements between competitors that fix prices, allocate markets or restrict the quantities of goods or services to be produced, bought or supplied. Examples of hard-core restrictions in vertical relationships are resale price maintenance and certain territorial restrictions. Provisions of an agreement that contain such restrictions are also referred to as black clauses and prevent the agreement from benefiting from a block exemption. Furthermore, agreements containing black clauses can only exceptionally be exempted on the basis of an individual assessment.
Carmen Peli, Peli Filip (Bucharest), Antitrust encyclopedia: Romania, November 2007
Question.: 547 Pays.....: 337 Article..: 17797
Russia-
The Federal Law “On Protection of Competition” which came into force on 26 October 2006 has taken account of many lessons that have been learned in the course of refining the standards of competition law and enforcement. As regards the scope in combating anticompetitive practice, the following issues are of paramount importance :
categorizing the agreements and concerted practices as stand-alone types (ways) in breaching the antimonopoly legislation ;
specifying the forms of agreements and concerted practices that are the subject-matter of the antimonopoly legislation, and providing legislative definitions of the agreements that represent breaches per se ;
in the legislation, employing and formalizing the rules of mindful approach towards certain categories of agreements and concerted practices ; differentiating approaches to horizontal and vertical agreements ;
providing an opportunity to use block exemptions together with the enforcement procedures ;
toughening of sanctions for breaching the antimonopoly legislation including for infringements such as forming and supporting cartels, via levying fines calculated as a percentage proportion on the returns of the violator companies ;
Igor Artemiev, Russian Federal Antimonopoly Service (Moscow), Antitrust encyclopedia: Russia, June 2008
Question.: 547 Pays.....: 340 Article..: 18982
Serbia-
Hard-core cartels are considered illegal per se.
Dusan Popovic, University of Law (Belgrade), Antitrust encyclopedia: Serbia, December 2009
Question.: 547 Pays.....: 702 Article..: 29974
Slovakia-
All the “hard-core” anticompetitive provisions listed in the Competition Act are considered per-se infringement - i.e.
a)direct or indirect fixing of prices or other trade conditions ;
b)commitment to limit or control production, sales, technical development, or investments ;
c)division of the market or sources of supply ;
d)commitment by the parties to the agreement that different conditions relating to an identical or comparable performance will be applied to individual undertakings, which will or may disadvantage these undertakings in competition ;
e)conditions stipulating that the conclusion of agreements will require the parties to accept further obligations that are not related to the subject of these agreements in terms of their nature or according to customary commercial practice ; or
f)signs of collusive behavior as a result of which undertakings coordinate their bids, especially in the process of public procurement.”
Axel Reidlinger, Freshfields (Vienna), Peter Oravec, Freshfields (Bratislava), Antitrust encyclopedia: Slovakia, November 2007
Question.: 547 Pays.....: 96 Article..: 19200
Slovenia-
The concept of per se infringements is not directly applicable to Slovenian legal system. According to provisions of General Administrative Procedure Act, the body which is conducting the administrative procedure has to find the material truth, which basically prevents the CPO from finding certain infringements as per se illegal.
Andrej Fatur, King’s College (London), Antitrust encyclopedia: Slovenia, November 2007
Question.: 547 Pays.....: 97 Article..: 17646
Spain-
There are no per se infringements included in the legislation, although consolidated decision practice has led to a high presumption of illegality for certain practices such as hard core cartels or price fixing in vertical restraints.
Carlos Pascual Pons, Spanish National Competition Authority (Madrid), Antitrust encyclopedia: Spain, November 2007
Question.: 547 Pays.....: 18 Article..: 17386
Sweden-
An agreement must restrict competition to an appreciable extent to fall under the prohibition in Section 6 of Competition Act. The section provides a non exhaustive list of agreements that are per se considered to constitute an infringement of the prohibition, such as price fixing, limitations on production or sale, market allocation and bid rigging.
Tommy Pettersson, Mannheimer Swartling (Stockholm), Antitrust encyclopedia: Sweden, November 2007
Question.: 547 Pays.....: 19 Article..: 18483
Switzerland-
The Competition Act does not consider infringements to be per se unlawful. The Competition Act is based on the principle of abuse. The mere existence of an anti-competitive agreement does not in itself mean that the agreement is unlawful. To be unlawful, such an agreement must either exclude effective competition completely or significantly impair effective competition, without being justified on economic efficiency grounds. By law (Article 5(3) and (4)), certain horizontal agreements (so-called hard-core cartels) and vertical agreements (so-called vertical restraints) are presumed to eliminate effective competition completely. This presumption may be rebutted if it can be shown that, as a matter of fact, effective competition is not eliminated by these agreements.
Benoît Merkt, Lenz & Staehelin (Geneva), Antitrust encyclopedia: Switzerland, November 2007
Question.: 547 Pays.....: 217 Article..: 17098
Turkey-
The Competition Board, in various decisions, has decided that price fixing and market allocation are per se infringements of the Competition Law. According to settled case law, there is no need to conduct further appraisal of the impact of such agreements that contain provisions on price fixing and market allocation.
Case law : First Cement Case (Decision No 99-30/276-166 (a), 17.06.1999)
Istanbul Food Wholesalers Case (Decision No 99-53/575-365, 24.10.1999)
Antalya Region Cement Case (Decision No 05-05/42-17, 13.01.2005)
Ece Gursoy, Denton Wilde Sapte LLP (London), Antitrust encyclopedia: Turkey, November 2007Question.: 547 Pays.....: 418 Article..: 19533
U.K.-
The behaviours covered by the Enterprise Act cartel offence (individuals dishonestly to engage in horizontal price-fixing, limiting supply or production, market sharing or bid-rigging in the UK) are per se offences. At the time of writing no decisions under the EA cartel offence have been issued. Section 60 of the Competition Act requires that it is interpreted consistently with European Court competition law. The concept of per se infringements is not recognised formally. However, there are certain restrictions which are considered to be ’hardcore’ and unlikely to benefit from exemption from the prohibition, regardless of the market position of the parties to the agreement, namely : directly or indirectly fixing prices, sharing markets or limiting production ; resale price maintenance ; and certain restrictions of a customer’s ability to determine the territories in which, and customers to whom, it on-sells.
Alasdair Balfour, Olswang (London), Claire Mc Comb, Olswang (London), Antitrust encyclopedia: U.K., November 2007
Question.: 547 Pays.....: 12 Article..: 15728