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Contents
- Preliminary Material
- Main Text
- Introduction to Chapters 1–8
- 1 Cartels and Proof of Cartels
- Private Practitioner’s Perspective
- A Introduction to Chapter 1
- B The Concept ‘Cartel’
- C Burden of Proof in Cartel Cases
- D Standard of Proof in Cartel Cases
- (1) Introduction
- (2) Standard of proof for the Commission
- (3) Presumptions in respect of Article 101(1) TFEU
- (4) Broad interpretation of the constituent elements of a cartel and evidentiary rules assisting in proving a cartel
- 1.61
- Broad interpretation of the concepts ‘agreement’ and ‘concerted practice’
- ‘Complex infringements’ encompassing both agreements and concerted practices
- ‘Single and continuous infringements’
- Broad reading of object infringements
- Inferring evidence from coincidences and indicia
- No need to demonstrate cartel mechanisms
- Relying on whole body of evidence
- (5) Standard of proof for an undertaking refuting a cartel
- (6) Rebuttal on the basis of Article 101(1) TFEU
- (7) Rebuttal on the basis of Article 101(3) TFEU
- E Key Points
- Public Enforcer’s Perspective
- Private Practitioner’s Perspective
- 2 Detection of Cartels
- Private Practitioner’s Perspective
- A Introduction
- B The Commission’s Investigatory Process
- C Applying for Immunity/Leniency
- (1) Decision to apply
- (2) Best practices for completing an immunity/leniency application
- (3) Issues in completing applications and markers
- (4) Applying in different jurisdictions in and outside the EU
- (5) Different treatment of compliance programmes in the EU, EU Member States, and other jurisdictions
- (6) Document disclosure issues and confidentiality
- D Key Points
- Public Enforcer’s Perspective
- A Introduction
- B Cartel Reality
- C Detecting Cartels Outside the Operation of a Leniency Programme
- D Practical Notes on the Process of Submitting a Leniency Application and Cooperating with a Competition Authority
- E Key Points
- Private Practitioner’s Perspective
- 3 The Investigation of Cartels
- Private Practitioner’s Perspective
- A Introduction
- B Physical Inspections
- (1) Introduction
- (2) Scope—How far the Commission can go
- (3) Legal framework
- (4) Safeguards/practical tips
- (5) Dawn raids
- C Electronic Searches
- D Legal Professional Privilege
- E Self-incrimination
- F Power to Take Statements
- G Written Requests for Information
- H Key Points
- Public Enforcer’s Perspective
- A Introduction
- B Request for Information
- C Taking Statements
- D Inspections
- E Limitation of Commission Powers
- F Key Points
- Private Practitioner’s Perspective
- 4 The Procedure before the EU Commission
- Private Practitioner’s Perspective
- Public Enforcer’s Perspective
- 5 Public Sanctions
- Private Practitioner’s Perspective
- A Applicable Rules
- B Key Concepts in Determining the Amount of the Fine
- (1) Introduction
- (2) Determination of the basic amount
- (3) Specific increase for deterrence on account of the undertaking’s large size
- (4) Increase of the basic amount on account of improper gains
- (5) The gravity of an infringement
- (6) Individual adjustments of gravity
- (7) Aggravating circumstances
- (8) Mitigating circumstances
- (9) Leniency
- (10) The 10% statutory limitation
- C Limitation Period
- D Tax Deductibility
- E Key Points
- Public Enforcer’s Perspective
- A Introduction
- B EU Competition Law Sanctions and Fundamental Rights
- C Commission Practice and EU Courts Case Law
- D Proportionality versus Deterrence
- E Gravity of the Infringement and of the Individual Participation
- F Aggravating Circumstances: Recidivism and Non-cooperation/Obstruction
- G Mitigating Circumstances: Passive Role and Cooperation Outside Leniency
- H The 10% Cap
- I Inability to Pay
- J Limitation Period: Interruption through Leniency Application?
- K Key Points
- Private Practitioner’s Perspective
- 6 Attribution of Cartel Liability
- Private Practitioner’s Perspective
- A Introduction
- B Direct Attribution of Liability
- C Parental Liability
- D Successor Liability
- E Combinations of Successor and Parental Liability
- F Key Points
- Public Enforcer’s Perspective
- Private Practitioner’s Perspective
- 7 Judicial Review of Cartel Decisions
- Private Practitioner’s Perspective
- A The Need for a Comprehensive Judicial Review of Cartel Decisions
- B Overview of the Available Actions in the EU Legal Order Providing Judicial Protection against Cartel Decisions
- C The Action for Annulment
- (1) Introduction
- (2) Which acts can be the subject matter of an action for annulment?
- (3) Acts adopted in the course of an investigation
- Acts adopted in relation to an inspection and acts taken in the course of an inspection
- Requests for information
- Decision to preliminarily grant or to refuse conditional leniency
- The initiation of proceedings
- The statement of objections
- A decision to refuse access to the file to the undertaking under investigation
- A decision to refuse the confidential nature of information submitted to the Commission
- The decision to communicate a non-confidential version of the SO to a third party
- (4) Acts by which an investigation is terminated
- D The Scope of Judicial Review in the Context of an Action for Annulment
- (1) A comprehensive judicial review
- (2) Which pleas can be invoked?
- (3) The outcome of an action for annulment
- E Key Points
- Public Enforcer’s Perspective
- Private Practitioner’s Perspective
- 8 Private Enforcement
- Private Practitioner’s Perspective
- A Introduction
- B Stand-alone Claim or Follow-on Claim?
- C Who Can Sue?
- D Who Can Be Sued?
- E Which Forum?
- F When to File a Claim?
- G How to Access the Necessary Information to Assess and Formulate the Claim?
- H Which Compensation?
- I Causation and Passing-on
- J Quantification
- K Key Points
- Public Enforcer’s Perspective
- A Introduction
- B Access to Evidence
- (1) Introduction
- (2) Access to evidence inter partes
- (3) Access to evidence included in the file of a competition authority
- (4) Limitations to the use of evidence obtained via direct access to the file of a competition authority
- C Joint and Several Liability
- D Key Points
- Private Practitioner’s Perspective
- Introduction to Chapters 9–11
- 9 Block Exemption Regulations R&D and Specialization
- A Introduction
- B R&D Agreements
- (1) Introduction
- (2) Qualification as R&D agreement in the sense of Regulation 1217/2010
- (3) R&D agreements and restrictions of competition in the sense of Article 101(1) TFEU
- (4) R&D agreements and the block exemption under Regulation 1217/2010
- (5) R&D agreements and individual exemption under Article 101(3) TFEU
- C Specialization Agreements
- (1) Introduction
- (2) Qualification as specialization agreement in the sense of Regulation 1218/2010
- (3) Specialization agreements and restrictions of competition in the sense of Article 101(1) TFEU
- (4) Specialization agreements and the block exemption under Regulation 1218/2010
- (5) Specialization agreements and the individual exemption under Article 101(3) TFEU
- D Key Points
- 10 Other Horizontal Agreements: Joint Purchasing, Commercialization, Standardization
- A Introduction
- B Qualification as Joint Purchasing, Commercialization, and Standardization in the Sense of the Horizontal Guidelines
- C Joint Purchasing
- D Joint Commercialization
- E Standardization Agreements
- F Key Points
- 11 Information Exchanges among Competitors
- Further Material