Editorial of July 2017

Machine Life Speed Curb Gear Mechanics

by Maria José Costeira, Portuguese Judge at the General Court of the CJEU

The transposition of the Private Enforcement Directive: a critical perspective

On 26th November 2014 the Directive 2014/104/EU of the European Parliament and of the Council on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union was approved. That directive, usually called Directive Enforcement, has to be transposed into national law by Member States until the 27th December 2016 (Article 21).

In Portugal, the National Competition Authority (Autoridade da Concorrência – AdC) entity in charge of preparing the transposition, presented, on the 22nd June 2016, the last proposal of a preliminary draft[i] for the transposition, which resulted from a process of public discussion.

Here, I intend to draw attention to some aspects that could be improved in the proposal.

Article 2 of the proposal gives the definition of cartel as “the agreement or concerted action between two or more competing companies which aims at coordinating their competition behaviour in the market or influencing the relevant competition standards through acts such as, namely, fixing or coordinating the prices of acquisition or sell or other conditions of transactions, including in relation to rights of intellectual property, attribution of production or sell quotas, sharing markets and clients, including the concertation in auctions and public procurements, restricting importations or exportations or conducting anti-competitive acts against other competitors as prohibited by Article 9 of the Law nº. 19/2012, of 8th May, and if applicable by Article 101, TFEU”.

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Sanctions to the anti-trust behaviour: the rethinking

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by Ana Filipa Afonseca, student of the Master´s degree in EU Law of UMinho

It´s not enough for the conducts to be forbidden. The European legislator’s task is much more compelling and challenging because to the European legislator it’s not enough to say “what can’t be done”, he has to be the creator of a coordinated and coherent system of norms in the Member States. The specificity of the regime created will dictate from where these norms start and where they end up. The anti-trust practices, in a internal market logic, are established in the articles 101, 102 and 106, TFEU as prohibited conducts, prejudicial conducts of a European economic project, which shall be conducive to a strong and developed market. However, the European lawmaker could not apply the same logic of cause, effect and consequence that applies to the traditional national systems once these strike back with the set of rules of the market practice – heir to an era when it was every man for himself.

In fact, the European Union has responded with new mechanisms but they are not consistent with integral efficiency of the competition law, in one hand, because in many cases the heavy fines paid by companies outweigh the profit earned by the anti-trust practice or, in the other hand, in case of abuse of dominant position, after the sanction, it converts itself in a long-lasting dominant position. A calculated risk.

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