Competition Protection and Anti-Monopolistic Practices
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Competition Law Jurisprudence
Key principles and foundations established by the Committee in reviewing competition cases:
1. Economic activities shall be carried on in a manner that does not lead to the prevention, restriction or harming of competition.
2. The principles of equal opportunity and equality among all operators are among the foundations of fair competition. All entities, whether in the government sector or the private sector, must adhere to them and act so as not to breach them in all their actions and dealings.
3. The setting of product prices by ministerial decisions or by laws does not entitle companies to conclude contracts or agreements, or to abuse a dominant position, in violation of the provisions of the Competition Law.
4. The principle of freedom to set prices is necessarily coupled with the rule of supply and demand and with the adoption of the principle of free competition, which requires countering anything liable to lead to an artificial setting of prices, such as economic operators resorting to understandings and agreements.
5. While every economic operator has the right to set its prices freely, whether by way of increase or reduction, in accordance with the operating costs it bears and the profit margin determined, the closeness of the rates of increase adopted and their simultaneity in date on the part of competing parties is an important indicator of the existence of an agreement.
6. The significance of the discount rates granted by a competitor is linked primarily to the level of actual competition in the market: the higher the degree and intensity of competition, the more significant the discount rates granted.
7. High operating costs prevent a company from being able to grant commercial discounts to its customers, given the negative repercussions of such an approach on its financial position.
8. Each company sets the criteria for granting commercial discounts according to its own wish and on the basis of the commercial policy that it draws up in complete freedom.
9. A decline in performance and a deterioration in the efficiency of a company may be due to external factors, including the intensity of competition, and to internal factors relating to its inability to control production costs in a way that prevents it from positioning itself properly in the market and from keeping pace with competition alongside the other players.
10. The principle of freedom of competition, which is among the foundations on which the market economy rests, aims primarily to drive undertakings to improve the use of their resources by seeking to meet the largest share of demand while achieving higher quality, more favourable prices and wider choice, to the benefit of the consumer.
11. The Committee's role in protecting competition and countering practices that undermine the balance of markets grants it the power to expand the scope of the case, such that, once it is seized of the case, it may itself determine the boundaries of the dispute without being bound by the parties or the subject matter, and without being confined to the grounds on which the case was based, in light of the fact that the legislator has granted it the right to take up anti-competitive practices on its own initiative.
12. The Committee is not competent to consider the lawfulness of the establishment or existence of the entities or undertakings that are party to the dispute, nor is it competent to verify the lawfulness of their carrying on of an economic activity in terms of licensing or regulatory compliance, unless this has a direct or potential effect on competition in the market, or is such as to create or strengthen a dominant position or to breach the rules of competition.
13. The carrying on of a private activity without right, if established, falls within the scope of cases of unfair competition. The impugned acts cannot become anti-competitive practices falling under the Competition Law unless they have an effect on the general balance of the market, or are such as to obstruct its mechanisms in a manner that undermines freedom of competition in the sector concerned.
14. The Committee's competence is confined to cases in which it is established that the acts or conduct of companies undermine the balance of the market or disrupt its normal functioning according to the rule of supply and demand. As for cases of unfair competition that do not rise to the level of affecting the balance of the relevant market as a whole, the Committee has no jurisdiction over them in any respect.
15. Matters relating to administrative decisions, or to disputes with the administration concerning what it issues in the course of performing its administrative function, are outside the Committee's scope of competence and fall to the administrative judiciary, which alone is competent to consider the lawfulness of administrative decisions.
16. Establishing the existence of collusion between two companies requires investigating a set of indicators pointing to the existence of such an agreement and verifying their accuracy and consistency. This means not being satisfied with the indicator of parallel conduct alone, and examining the various other indications that establish the existence of the agreement or refute it.
17. The submission of a complaint/report to the Committee causes it to be seized of the entire market that is the subject of the matter, without being bound by the requests, objections, pleas and grounds raised, and without being confined to the parties named in the complaint/report. This permits it, pursuant to the guiding and investigative procedures it follows, to expand the scope of the complaint/report, to reclassify the facts, and to authorise all means of investigation aimed at ensuring the proper functioning of the market that is the subject of the complaint/report.
18. Commercial discounts may constitute a source of risk to competition within the relevant market if they are granted in a discriminatory and non-objective manner to the operators within it, which is liable to lead to the exclusion of some participants and to enable others to benefit from the strengthening of their share within the relevant market. Moreover, the degree of risk posed by this type of discount varies according to the degree of competition within the market concerned and according to the standing of the company granting them.
19. A non-competition clause, although permissible where its purpose is to protect the company from competition by its agent in the event of termination of the contract, becomes a clause that impedes the agent from entering the market concerned under the requirements of the Competition Law where it is expanded in terms of duration and in terms of the activities that the agent could originally have carried out without needing to contract with the company in respect of them.
2. The principles of equal opportunity and equality among all operators are among the foundations of fair competition. All entities, whether in the government sector or the private sector, must adhere to them and act so as not to breach them in all their actions and dealings.
3. The setting of product prices by ministerial decisions or by laws does not entitle companies to conclude contracts or agreements, or to abuse a dominant position, in violation of the provisions of the Competition Law.
4. The principle of freedom to set prices is necessarily coupled with the rule of supply and demand and with the adoption of the principle of free competition, which requires countering anything liable to lead to an artificial setting of prices, such as economic operators resorting to understandings and agreements.
5. While every economic operator has the right to set its prices freely, whether by way of increase or reduction, in accordance with the operating costs it bears and the profit margin determined, the closeness of the rates of increase adopted and their simultaneity in date on the part of competing parties is an important indicator of the existence of an agreement.
6. The significance of the discount rates granted by a competitor is linked primarily to the level of actual competition in the market: the higher the degree and intensity of competition, the more significant the discount rates granted.
7. High operating costs prevent a company from being able to grant commercial discounts to its customers, given the negative repercussions of such an approach on its financial position.
8. Each company sets the criteria for granting commercial discounts according to its own wish and on the basis of the commercial policy that it draws up in complete freedom.
9. A decline in performance and a deterioration in the efficiency of a company may be due to external factors, including the intensity of competition, and to internal factors relating to its inability to control production costs in a way that prevents it from positioning itself properly in the market and from keeping pace with competition alongside the other players.
10. The principle of freedom of competition, which is among the foundations on which the market economy rests, aims primarily to drive undertakings to improve the use of their resources by seeking to meet the largest share of demand while achieving higher quality, more favourable prices and wider choice, to the benefit of the consumer.
11. The Committee's role in protecting competition and countering practices that undermine the balance of markets grants it the power to expand the scope of the case, such that, once it is seized of the case, it may itself determine the boundaries of the dispute without being bound by the parties or the subject matter, and without being confined to the grounds on which the case was based, in light of the fact that the legislator has granted it the right to take up anti-competitive practices on its own initiative.
12. The Committee is not competent to consider the lawfulness of the establishment or existence of the entities or undertakings that are party to the dispute, nor is it competent to verify the lawfulness of their carrying on of an economic activity in terms of licensing or regulatory compliance, unless this has a direct or potential effect on competition in the market, or is such as to create or strengthen a dominant position or to breach the rules of competition.
13. The carrying on of a private activity without right, if established, falls within the scope of cases of unfair competition. The impugned acts cannot become anti-competitive practices falling under the Competition Law unless they have an effect on the general balance of the market, or are such as to obstruct its mechanisms in a manner that undermines freedom of competition in the sector concerned.
14. The Committee's competence is confined to cases in which it is established that the acts or conduct of companies undermine the balance of the market or disrupt its normal functioning according to the rule of supply and demand. As for cases of unfair competition that do not rise to the level of affecting the balance of the relevant market as a whole, the Committee has no jurisdiction over them in any respect.
15. Matters relating to administrative decisions, or to disputes with the administration concerning what it issues in the course of performing its administrative function, are outside the Committee's scope of competence and fall to the administrative judiciary, which alone is competent to consider the lawfulness of administrative decisions.
16. Establishing the existence of collusion between two companies requires investigating a set of indicators pointing to the existence of such an agreement and verifying their accuracy and consistency. This means not being satisfied with the indicator of parallel conduct alone, and examining the various other indications that establish the existence of the agreement or refute it.
17. The submission of a complaint/report to the Committee causes it to be seized of the entire market that is the subject of the matter, without being bound by the requests, objections, pleas and grounds raised, and without being confined to the parties named in the complaint/report. This permits it, pursuant to the guiding and investigative procedures it follows, to expand the scope of the complaint/report, to reclassify the facts, and to authorise all means of investigation aimed at ensuring the proper functioning of the market that is the subject of the complaint/report.
18. Commercial discounts may constitute a source of risk to competition within the relevant market if they are granted in a discriminatory and non-objective manner to the operators within it, which is liable to lead to the exclusion of some participants and to enable others to benefit from the strengthening of their share within the relevant market. Moreover, the degree of risk posed by this type of discount varies according to the degree of competition within the market concerned and according to the standing of the company granting them.
19. A non-competition clause, although permissible where its purpose is to protect the company from competition by its agent in the event of termination of the contract, becomes a clause that impedes the agent from entering the market concerned under the requirements of the Competition Law where it is expanded in terms of duration and in terms of the activities that the agent could originally have carried out without needing to contract with the company in respect of them.
1. Since a branch does not have a legal personality independent of the parent company and therefore has no right to represent the company — representation being carried out by its board of directors or by its managers authorised to represent it in accordance with the provisions of the law, the company's contract and its articles of association — and since the request was submitted by one of the branches, it becomes legally inadmissible, having been submitted in a manner not consistent with the correct application of the law by a person entitled to represent the company and to defend it before third parties. The request must therefore be submitted properly by the legal representative of the company.
2. A complaint/report submitted to the Committee is admissible only from those who have standing and interest.
3. Standing is one of the fundamental elements for the admissibility of a complaint/report in general.
4. A request to withdraw a complaint/report must satisfy two fundamental elements, namely clarity and explicitness, and it cannot be inferred.
5. The withdrawal of a complaint/report does not restrict the work of the Committee, which may continue to examine the complaint where it has indicators showing the existence of anti-competitive practices.
6. Where two complaints are identical in subject matter and in the grounds of challenge, and in order to ensure the proper administration of justice, they should be joined and decided by a single decision.
7. Compliance with the principle of res judicata requires that the previously decided case and the present case share three elements: identity of parties, identity of subject matter and identity of cause.
2. A complaint/report submitted to the Committee is admissible only from those who have standing and interest.
3. Standing is one of the fundamental elements for the admissibility of a complaint/report in general.
4. A request to withdraw a complaint/report must satisfy two fundamental elements, namely clarity and explicitness, and it cannot be inferred.
5. The withdrawal of a complaint/report does not restrict the work of the Committee, which may continue to examine the complaint where it has indicators showing the existence of anti-competitive practices.
6. Where two complaints are identical in subject matter and in the grounds of challenge, and in order to ensure the proper administration of justice, they should be joined and decided by a single decision.
7. Compliance with the principle of res judicata requires that the previously decided case and the present case share three elements: identity of parties, identity of subject matter and identity of cause.
1. The Committee's jurisdiction extends to all practices that undermine freedom of competition or that impair market mechanisms and their proper functioning, whatever their source or form, whenever the matter concerns acts which, if some or all of them are established, lead to a disturbance of the normal balance of the market concerned, irrespective of the outcome of those allegations examined in the substance of the dispute.
2. The Committee's jurisdiction is confined to disputes relating to anti-competitive practices within the meaning of the provisions of Law No. 19 of 2006 which have an impact on the general balance of the market concerned and on its proper functioning according to the recognised rules governing that market.
3. Practices whose effects are confined to competitors alone, without affecting freedom of competition, fall within the jurisdiction of the ordinary courts.
4. Unlawful competition practices, such as trademark imitation and damage to reputation, fall to the competent authority. Such practices cannot become anti-competitive practices falling within the Committee's competence unless they are such as to obstruct free competition and to disturb the general balance of the market.
5. Disputes arising from the breach by contracting parties of their contractual obligations, without this having an effect on the balance of the market and on freedom of competition within it, fall within the competence of the competent authority.
2. The Committee's jurisdiction is confined to disputes relating to anti-competitive practices within the meaning of the provisions of Law No. 19 of 2006 which have an impact on the general balance of the market concerned and on its proper functioning according to the recognised rules governing that market.
3. Practices whose effects are confined to competitors alone, without affecting freedom of competition, fall within the jurisdiction of the ordinary courts.
4. Unlawful competition practices, such as trademark imitation and damage to reputation, fall to the competent authority. Such practices cannot become anti-competitive practices falling within the Committee's competence unless they are such as to obstruct free competition and to disturb the general balance of the market.
5. Disputes arising from the breach by contracting parties of their contractual obligations, without this having an effect on the balance of the market and on freedom of competition within it, fall within the competence of the competent authority.
1. An agreement within the meaning of the Competition Law may be express or implied, written or oral.
2. An agreement in competition matters rests on three elements: the meeting of more than one will, the object of the agreement, and the effect of the agreement.
3. Anti-competitive agreements are agreements whose effect or object contravenes the rules of competition, regardless of whether the element of intent is present, since the absence of intent does not exempt the infringer from liability, although it is an element taken into account when determining the financial penalty.
4. In certain cases the anti-competitive effect is the sole basis for penalising certain agreements. This is so for agreements that do not aim to harm competition but that in practice lead to obstructing, restricting or distorting it, so that they must be deterred on the basis of the effect they have produced, rather than exempted on the basis that their object is not harmful to competition.
5. The application of the provisions of the Competition Law is not confined to agreements concluded between companies alone; it also applies to agreements concluded between a group of entities where at least one of them is a person carrying on an economic activity. On this basis, practices arising from the relationship between two companies belonging to the same owners cannot be classified as anti-competitive agreements, since the practices emanate from branches that do not enjoy independence of their own.
6. The harm caused by prohibited agreements to competition and to the balance of markets takes shape through their effect on market structure. This occurs through practices that limit entry to the market or that exclude competitors from it, by means of express or implied agreements between existing competitors, or between them and the professional bodies representing them, to confine competition among themselves; or by concluding distribution contracts through which new distributors are prevented from entering the market; or by concluding agreements whose object is the sharing of markets or of supply sources.
7. In the absence of means of proof that can be relied upon directly, recourse must be had to the methodology of the "convergence of indications", which means that the existence of the agreement may be concluded where a set of established, precise and converging indications is present.
8. The nature of practices falling under an implied agreement necessarily relies on concealment and secrecy, which makes proving them difficult. In most cases they can only be established by resorting to the indications brought out by research and investigation, even where each of those indications, taken in itself or in isolation from the others, does not constitute conclusive proof of the existence of an agreement.
9. The convergence of indications that are precise, serious and consistent is capable of establishing proof of the parties' involvement in a prohibited agreement within the meaning of the Competition Law.
10. Parallelism in conduct or in commercial policies in a given market does not in itself, in principle, constitute an anti-competitive practice within the meaning of the provisions of the Competition Law. Such parallelism does not rise to the level of an anti-competitive agreement, but it is an essential condition for it, provided that it converges with other indicators showing the existence of collusion between the parties concerned.
11. For the prohibition of an agreement to arise, it is not required that the colluding persons be active in the same relevant market; an agreement concluded between persons who do not belong to the same sector may expose them to legal liability.
12. The object of an agreement is anti-competitive if, by its very nature, it has the capacity to harm competition. In such a case the object of the agreement carries a high likelihood of having negative effects on competition, to the extent that it is unnecessary to prove that it has tangible effects in the market.
13. When assessing the object of an agreement that is anti-competitive in itself, an analysis must be carried out on a case-by-case basis of the actual or potential effects of the practices.
14. To determine whether an agreement aims to restrict competition or not, reliance must be placed on a number of factors, the most important of which are the content of the agreement and its objective aims. It may also be necessary to take into account the context and the commercial circumstances surrounding the conclusion of the agreement, as well as the actual conduct of the parties in the market. Accordingly, the facts on which the agreement is based, and the specific circumstances in which it will be applied, must be examined and studied.
15. Where the terms of the agreement infringe the law and indicate that its parties are aware of the practices they intend to commit in the market, the agreement is prohibited even if its effects have not materialised.
16. The agreement must be examined in the light of the reality of the market, its likely developments and the size of the companies operating in it, since a prohibited agreement is one that is liable to harm competition seriously, which leads to the exclusion of agreements that affect competition only to a limited extent.
17. Any agreement may be condemned by reason of its effects even if its object is not anti-competitive.
18. Establishing that an agreement has occurred presupposes the need to ascertain the apparent will of the parties to the agreement, whose intentions have concurred and whose wills have coincided in order to coordinate their actions and conduct in various ways with the aim of breaching the rules of competition in the market and avoiding the intensity of competition within it. It is presumed, in light of this, that the parties to the agreement have the capacity to act with full independence when taking any decision concerning their relationship with one another.
19. Although the aims of each party to the alliance differ according to its own interests, the individual will of each party converges with the collective will of the alliance in order to exclude a competitor or to limit the entry of potential competitors.
2. An agreement in competition matters rests on three elements: the meeting of more than one will, the object of the agreement, and the effect of the agreement.
3. Anti-competitive agreements are agreements whose effect or object contravenes the rules of competition, regardless of whether the element of intent is present, since the absence of intent does not exempt the infringer from liability, although it is an element taken into account when determining the financial penalty.
4. In certain cases the anti-competitive effect is the sole basis for penalising certain agreements. This is so for agreements that do not aim to harm competition but that in practice lead to obstructing, restricting or distorting it, so that they must be deterred on the basis of the effect they have produced, rather than exempted on the basis that their object is not harmful to competition.
5. The application of the provisions of the Competition Law is not confined to agreements concluded between companies alone; it also applies to agreements concluded between a group of entities where at least one of them is a person carrying on an economic activity. On this basis, practices arising from the relationship between two companies belonging to the same owners cannot be classified as anti-competitive agreements, since the practices emanate from branches that do not enjoy independence of their own.
6. The harm caused by prohibited agreements to competition and to the balance of markets takes shape through their effect on market structure. This occurs through practices that limit entry to the market or that exclude competitors from it, by means of express or implied agreements between existing competitors, or between them and the professional bodies representing them, to confine competition among themselves; or by concluding distribution contracts through which new distributors are prevented from entering the market; or by concluding agreements whose object is the sharing of markets or of supply sources.
7. In the absence of means of proof that can be relied upon directly, recourse must be had to the methodology of the "convergence of indications", which means that the existence of the agreement may be concluded where a set of established, precise and converging indications is present.
8. The nature of practices falling under an implied agreement necessarily relies on concealment and secrecy, which makes proving them difficult. In most cases they can only be established by resorting to the indications brought out by research and investigation, even where each of those indications, taken in itself or in isolation from the others, does not constitute conclusive proof of the existence of an agreement.
9. The convergence of indications that are precise, serious and consistent is capable of establishing proof of the parties' involvement in a prohibited agreement within the meaning of the Competition Law.
10. Parallelism in conduct or in commercial policies in a given market does not in itself, in principle, constitute an anti-competitive practice within the meaning of the provisions of the Competition Law. Such parallelism does not rise to the level of an anti-competitive agreement, but it is an essential condition for it, provided that it converges with other indicators showing the existence of collusion between the parties concerned.
11. For the prohibition of an agreement to arise, it is not required that the colluding persons be active in the same relevant market; an agreement concluded between persons who do not belong to the same sector may expose them to legal liability.
12. The object of an agreement is anti-competitive if, by its very nature, it has the capacity to harm competition. In such a case the object of the agreement carries a high likelihood of having negative effects on competition, to the extent that it is unnecessary to prove that it has tangible effects in the market.
13. When assessing the object of an agreement that is anti-competitive in itself, an analysis must be carried out on a case-by-case basis of the actual or potential effects of the practices.
14. To determine whether an agreement aims to restrict competition or not, reliance must be placed on a number of factors, the most important of which are the content of the agreement and its objective aims. It may also be necessary to take into account the context and the commercial circumstances surrounding the conclusion of the agreement, as well as the actual conduct of the parties in the market. Accordingly, the facts on which the agreement is based, and the specific circumstances in which it will be applied, must be examined and studied.
15. Where the terms of the agreement infringe the law and indicate that its parties are aware of the practices they intend to commit in the market, the agreement is prohibited even if its effects have not materialised.
16. The agreement must be examined in the light of the reality of the market, its likely developments and the size of the companies operating in it, since a prohibited agreement is one that is liable to harm competition seriously, which leads to the exclusion of agreements that affect competition only to a limited extent.
17. Any agreement may be condemned by reason of its effects even if its object is not anti-competitive.
18. Establishing that an agreement has occurred presupposes the need to ascertain the apparent will of the parties to the agreement, whose intentions have concurred and whose wills have coincided in order to coordinate their actions and conduct in various ways with the aim of breaching the rules of competition in the market and avoiding the intensity of competition within it. It is presumed, in light of this, that the parties to the agreement have the capacity to act with full independence when taking any decision concerning their relationship with one another.
19. Although the aims of each party to the alliance differ according to its own interests, the individual will of each party converges with the collective will of the alliance in order to exclude a competitor or to limit the entry of potential competitors.
1. Individual dominance is defined as the ability of a person to control the market for products and to exert an effective influence on prices or on the volume of supply in that market, without its competitors having the ability to do so.
2. A dominant position in the market is not prohibited in itself, since companies are entitled to hold such a position, but they are not entitled to abuse it.
3. Holding the largest market share is not sufficient to establish that a company is in a dominant position in the market, because such a position is established only where the company is able to impose its terms, to control market mechanisms, to influence prices and to act according to its own sole will without being subject to competitive pressures, and where competitors are unable to limit this.
4. The market-share criterion is one of the elements for assessing the existence of dominance in the market, but this criterion alone is not sufficient, and the practice must be characterised case by case, since a high market share does not necessarily reflect a position of dominance or that the company holds market power. The approach to characterising the company's position must therefore be based on assembling the indications and indicators in order to establish the existence of a dominant position.
5. The market-share element must converge with other elements, such as product diversity, technological advancement, financial strength, promotion and marketing means, and others, in order to confirm that a company is dominant in the market.
6. Abuse of a dominant position means any conduct emanating from a dominant company that goes beyond the bounds of normal competition and that cannot be justified economically other than by the existence of a will to eliminate actual or potential competitors and to obtain unjustified advantages.
7. The elements of abuse of a position of economic dominance are not established only where the effect is on the very market in which the company concerned, found to be in breach, holds that position; rather, it may be pursued where it appears that the effect of its acts undermines the balance of other relevant markets.
8. Collective dominance means the situation in which, through the presence of a set of converging and combined elements, it is shown that two companies (or more) which are expected to compete in a relevant market decide, instead of competing, to act in a parallel manner liable to result in their holding a dominant position in that market, while creating legal or factual mechanisms, or both, in order to perpetuate that dominance so as to block the entry of new competitors or to restrict the activity of competing companies.
9. Verifying the existence of a position of collective dominance in a market presupposes, first, ascertaining the existence of legal or structural links common to the companies in a position of collective dominance, such as cross-shareholdings in capital or commercial agreements, the regular exchange of products between the companies concerned, a patent licensing agreement, or the formation of a group; and, second, the existence of parallelism in conduct and the following of the same commercial policies.
10. Legal or structural links, where established, constitute evidence of the existence of a position of collective dominance. As for the behavioural situation, any link between the companies is sufficient in itself to establish proof of the existence of a position of collective dominance where it permits the adoption of a joint commercial strategy.
11. In the absence of links, the existence of a position of collective dominance is verified by confirming the existence of the following combined elements:
11.1. That the market concerned is subject to an oligopoly with a high degree of transparency, meaning a situation that allows each of the companies to know the conduct followed by the other companies, in order to verify that they follow the same type of dealings or commercial terms.
11.2. That the process of coordinating and paralleling commercial approaches must continue for a period sufficient for its effects — collective dominance over the targeted market — to take hold.
11.3. That the state of the market does not allow competitors or those dealing with the collectively dominant companies to react in a manner that undermines that position.
12. A position of collective dominance is not in itself a breach of the rules of free competition; rather, finding the parties in a position of collective dominance in breach requires examining whether there has been an abuse of that position.
2. A dominant position in the market is not prohibited in itself, since companies are entitled to hold such a position, but they are not entitled to abuse it.
3. Holding the largest market share is not sufficient to establish that a company is in a dominant position in the market, because such a position is established only where the company is able to impose its terms, to control market mechanisms, to influence prices and to act according to its own sole will without being subject to competitive pressures, and where competitors are unable to limit this.
4. The market-share criterion is one of the elements for assessing the existence of dominance in the market, but this criterion alone is not sufficient, and the practice must be characterised case by case, since a high market share does not necessarily reflect a position of dominance or that the company holds market power. The approach to characterising the company's position must therefore be based on assembling the indications and indicators in order to establish the existence of a dominant position.
5. The market-share element must converge with other elements, such as product diversity, technological advancement, financial strength, promotion and marketing means, and others, in order to confirm that a company is dominant in the market.
6. Abuse of a dominant position means any conduct emanating from a dominant company that goes beyond the bounds of normal competition and that cannot be justified economically other than by the existence of a will to eliminate actual or potential competitors and to obtain unjustified advantages.
7. The elements of abuse of a position of economic dominance are not established only where the effect is on the very market in which the company concerned, found to be in breach, holds that position; rather, it may be pursued where it appears that the effect of its acts undermines the balance of other relevant markets.
8. Collective dominance means the situation in which, through the presence of a set of converging and combined elements, it is shown that two companies (or more) which are expected to compete in a relevant market decide, instead of competing, to act in a parallel manner liable to result in their holding a dominant position in that market, while creating legal or factual mechanisms, or both, in order to perpetuate that dominance so as to block the entry of new competitors or to restrict the activity of competing companies.
9. Verifying the existence of a position of collective dominance in a market presupposes, first, ascertaining the existence of legal or structural links common to the companies in a position of collective dominance, such as cross-shareholdings in capital or commercial agreements, the regular exchange of products between the companies concerned, a patent licensing agreement, or the formation of a group; and, second, the existence of parallelism in conduct and the following of the same commercial policies.
10. Legal or structural links, where established, constitute evidence of the existence of a position of collective dominance. As for the behavioural situation, any link between the companies is sufficient in itself to establish proof of the existence of a position of collective dominance where it permits the adoption of a joint commercial strategy.
11. In the absence of links, the existence of a position of collective dominance is verified by confirming the existence of the following combined elements:
11.1. That the market concerned is subject to an oligopoly with a high degree of transparency, meaning a situation that allows each of the companies to know the conduct followed by the other companies, in order to verify that they follow the same type of dealings or commercial terms.
11.2. That the process of coordinating and paralleling commercial approaches must continue for a period sufficient for its effects — collective dominance over the targeted market — to take hold.
11.3. That the state of the market does not allow competitors or those dealing with the collectively dominant companies to react in a manner that undermines that position.
12. A position of collective dominance is not in itself a breach of the rules of free competition; rather, finding the parties in a position of collective dominance in breach requires examining whether there has been an abuse of that position.
1. The mechanism of economic concentration is resorted to as one of the solutions for distressed companies. Such companies, suffering from economic crises and debts, resort to merging with another company having better economic and managerial capabilities, in order to escape the difficult circumstances the distressed company is experiencing.
2. Subjecting economic concentration projects to prior control aims to achieve prior protection of the rules of competition in the market concerned, by assessing the effects of those projects and ensuring the achievement of the objectives of the law, namely raising the productive efficiency and the allocative efficiency of the activity and improving consumer welfare.
3. Vertical concentration covers activities that are not competing but complementary, such that it has no effect on the number of competitors or on the degree of concentration, because the products are different.
4. Vertical concentration may lead to foreclosure of the market concerned, particularly where barriers to entry into it are high. It is therefore necessary to ascertain what negative effects such concentration may have on the state of competition in the market, whether through price discrimination practices or through restrictive practices.
5. Any exclusive dealing between the parties to a vertical concentration is liable to result in foreclosure of the market at the level of the upstream market and the downstream market, where competing companies at the level of those markets have no alternative source of supply for the good or service concerned.
6. Horizontal concentration takes place between companies operating in the same activity, that is, between companies operating at the same stage (production or distribution). This type of concentration leads to a reduction in the number of competing companies and to the aggregation of the market shares belonging to its parties.
7. Horizontal concentration produces two opposing effects: productive efficiency and allocative inefficiency. These must be compared, and a balance struck between the benefits and the harms arising from the concentration, in order to determine its net effect on the consumer and on the economy.
8. Productive efficiency results from the increased efficiency of the parties to the concentration in reducing production costs, and consequently from consumers benefiting from a possible reduction in the prices of the products concerned.
9. Allocative inefficiency is the product of the increased market power of the parties to the concentration as a result of eliminating competition between the players in the market, so that the concentration becomes a tool that encourages the raising of prices and the maximisation of profits.
10. Unilateral effects arising from horizontal concentration operations are all the anti-competitive practices that the parties to the concentration are likely to engage in individually, without being obliged to coordinate and reach an understanding with the other competitors, finding it profitable to change their conduct unilaterally by raising the price and reducing output without entering into understandings with the other competitors.
11. Coordinated or collective effects arising from horizontal concentration operations are the set of measures taken by the parties to the concentration which accord with the wish of each company only following consistent reactions from the other competitors. That is, the merger increases the likelihood that, after the concentration, the merged parties and their competitors will be able to coordinate their conduct in a manner contrary to the rules of free competition. These effects cannot arise from practices carried out by the parties to the concentration individually, either because they are unable to do so or because coordination between the various operators in the market is impossible.
2. Subjecting economic concentration projects to prior control aims to achieve prior protection of the rules of competition in the market concerned, by assessing the effects of those projects and ensuring the achievement of the objectives of the law, namely raising the productive efficiency and the allocative efficiency of the activity and improving consumer welfare.
3. Vertical concentration covers activities that are not competing but complementary, such that it has no effect on the number of competitors or on the degree of concentration, because the products are different.
4. Vertical concentration may lead to foreclosure of the market concerned, particularly where barriers to entry into it are high. It is therefore necessary to ascertain what negative effects such concentration may have on the state of competition in the market, whether through price discrimination practices or through restrictive practices.
5. Any exclusive dealing between the parties to a vertical concentration is liable to result in foreclosure of the market at the level of the upstream market and the downstream market, where competing companies at the level of those markets have no alternative source of supply for the good or service concerned.
6. Horizontal concentration takes place between companies operating in the same activity, that is, between companies operating at the same stage (production or distribution). This type of concentration leads to a reduction in the number of competing companies and to the aggregation of the market shares belonging to its parties.
7. Horizontal concentration produces two opposing effects: productive efficiency and allocative inefficiency. These must be compared, and a balance struck between the benefits and the harms arising from the concentration, in order to determine its net effect on the consumer and on the economy.
8. Productive efficiency results from the increased efficiency of the parties to the concentration in reducing production costs, and consequently from consumers benefiting from a possible reduction in the prices of the products concerned.
9. Allocative inefficiency is the product of the increased market power of the parties to the concentration as a result of eliminating competition between the players in the market, so that the concentration becomes a tool that encourages the raising of prices and the maximisation of profits.
10. Unilateral effects arising from horizontal concentration operations are all the anti-competitive practices that the parties to the concentration are likely to engage in individually, without being obliged to coordinate and reach an understanding with the other competitors, finding it profitable to change their conduct unilaterally by raising the price and reducing output without entering into understandings with the other competitors.
11. Coordinated or collective effects arising from horizontal concentration operations are the set of measures taken by the parties to the concentration which accord with the wish of each company only following consistent reactions from the other competitors. That is, the merger increases the likelihood that, after the concentration, the merged parties and their competitors will be able to coordinate their conduct in a manner contrary to the rules of free competition. These effects cannot arise from practices carried out by the parties to the concentration individually, either because they are unable to do so or because coordination between the various operators in the market is impossible.