Cyprus: EU Law: Pricing & Competion Law

Last Updated: 13 November 2001
Article by Alexandros Economou

Price lies at the heart of competition and is the medium through which it is normally waged

Obviously, pricing activity is competition in one of its essential forms. The protection of free price competition is one of the centerpieces of Commission policy, as called for by the express wording of Articles 81 and 82. The two articles are, thus, operative provisions of the Treaty giving flesh to the core activity prescribed by Art. 3(1)(g) of creating ‘a system ensuring that competition in the internal market is not distorted’.

ARTICLE 81

Art. 81(1) applies a basic prohibition to collaboration that imbeds the influence of effective competition in the common market. Art. 81(2) supplements the first paragraph by declaring that prohibited practices are void. This has important consequences before national courts, where prohibited agreements are accordingly unenforceable. The objective of the prohibition is to ensure that the efficient allocation of resources is not distorted. Yet, some forms of collaboration are beneficial even though they suppress competition. For example, collaboration may permit the widening of distribution networks or the promotion of deeper research programmes. Consequently, the basic prohibition contained in Art. 81(1) and (2) is subject to the availability of an exemption under Art. 81(3) of agreements that meet specified criteria reflecting overall beneficial effect. The grant of exemption is the exclusive preserve of the Commission.

Art. 81(1) contains four essential elements. There must be:

  1. an agreement between undertakings, or a decision by an association of undertakings or a concerted practice,
  2. which may affect trade between Member States,
  3. which have as their object or effect
  4. the prevention, restriction or distortion of competition within the common market.

The types of practice that are capable of falling within Art. 81 are many and varied. It is fundamentally important to notice that the definition contained in Art. 81(1) is very broad and flexible and, crucially, it is effects based. An agreement falls within the scope of Art. 81 if it meets the tests relating, broadly, to the effect of the agreement on the patterns of trade within the common market. Neither the precise legal form of the agreement nor its actual content are of any direct relevance. The article contains a useful illustrative list of the types of practice that are capable of falling within the scope of the prohibition. If a practice falls under the prescribed practices, then a prima facie violation of Art. 81 has occurred. Pernicious price-fixing and market-sharing arrangements count among the plainest infringements of Art. 81(1), although the discovery of such unlawful practices remains regrettably common even today. However, even an agreement that cannot be fitted into any of the five examples given in Art. 81(1), it may still be caught in the net if it distorts competition within the common market in accordance with the definition in the first part of Art. 81(1). The list in Art. 81(1), then, is not exhaustive.

Art. 81(3) represents a recognition that some agreements or practices which fall within the prohibition of Art. 81(1) may nevertheless produce beneficial effects either in terms of competition itself or, perhaps, in other respects which may outweigh their anticompetitive effects, and so provides authority for setting aside, or exempting them from, the prohibition. The exemption may be granted only if the agreement meets the conditions, which are both positive and negative, two of each. The agreement must:

Positively, 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’; and

Negatively, neither ‘impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives’ nor ‘afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question’.

It will be observed that the four conditions are purely economic in character. There is no provision for, and the Commission has never deployed, consideration of other criteria, such as cultural or social benefits or requirements.1 The four are cumulative and each much be met before exemption can be granted; if any of the four is not satisfied, exemption must be refused.2 Nevertheless, if the four are fulfilled, exemption ought to be granted.

Art. 81(2) simply states that any ‘agreements or decisions prohibited pursuant to this Article shall be automatically void’. This broad statement of legal effect should, of course, be read in conjunction with the provisions in Regulation 17, enabling the Commission to grand retroactive exemption from Art. 81(1) where appropriate notification of the agreement has been made. In all other cases, Art. 81(2) means that agreements which infringe Art. 81(1) cannot be treated as valid in any Court within the Community, except in those three instances where after notification they benefit from provisional validity by reason of having been in existence at the date of accession of the relevant Member State to the Treaty.

One would think from the bare words of the text that the quality of voidness applies to the entire agreement containing prohibited clauses, and this was the original attitude adopted by the Commission in the Grundig 3 case. The Court, however, adopted a different interpretation, finding that those clauses of the agreement which did not contain restrains in breach of Art. 81(1) were not rendered void by the terms of either Art. 81(1) or Regulation 17. In all subsequent cases the Commission has challenged the individual clauses in restrained of trade, rather than entire agreements.

This sanction of voidness is more important for parties to agreements whose basic purpose is legitimate but which may contain clauses, for example as to royalty payments, exclusivity, or limits on methods of sale, on the borderline of what can be individually permitted under Art. 81(3). Such parties may find themselves, if they implement their agreement without obtaining individual exemption, in the unfortunate position of continuing to be bound by a contract now very different from that originally negotiated between the parties, or of having no valid contract in existence.

By contrast, and in line with the subject matter of this paper, parties to a price-fixing are normally little concerned about the consequences of Art. 81(2), since they will not have expected in any case to enforce it through Court proceedings, whatever other unofficial sanctions may be contemplated or threatened against parties who deviate from it. Moreover, there is little likelihood, after substantive restrictions relating to price-fixing have been removed from the agreement, that any enforceable continuing contractual provisions between the parties will remain. For such agreements the only sanctions of any value or deterrent effect are the fines and penalties which the Commission is entitled to impose under Art. 15 and 16 of Regulation 17.

Vertical Agreements: New Block Exemption (BER)

Vertical restrains in vertical agreements are restrictions agreed between businesses at different points in the supply chain. The Commission defines them to mean those between firms ‘at a different level of the production or distribution chain’. Primarily they address the contractual chain between the original producer of a good or service and its eventual consumer. Their prime advantage is that they allow for net economic efficiency: they enable the producer to concentrate upon production and relieve it of the obligation of shifting the goods on the market, for that will be the concern of the distributor who is better suited to the task. The consumer in turn is better served as the marketing of goods and services is devolved from their production and distinct efficiencies may thereby be produced at that level.

In principle they fall within the general prohibition on anti-competitive practices affecting trade between Member States in Art. 81 but are generally considered by the Commission to be less restrictive of competition than restrains in horizontal agreements between businesses at the same level of the supply chain. In practice, therefor, vertical agreements generally fall outside the prohibition within Art. 81(1) or fall within one of the exemptions under Art. 81(3).

The new EC block exemption regulation (BER)4 applies to vertical agreements in exclusive distribution, exclusive purchasing and franchise agreements. Under the old system, agreements must have either been drafted so as to fall within one of the relevant block exemptions, or the agreement might have been notified to the Commission for clearance. Under the present system, it is possible for an agreement to receive automatic exemption by virtue of careful drafting regardless of the negative effects it might have on competition within its market. However, companies broadly have to carry out their own assessments on agreements to determine the effects any obligations within the agreements may have on competition. In other words, there has been a shift towards the impact of agreements on competition, rather than on their contractual form.

A simple exclusive distribution agreement improves the range of products available and are consequently beneficial as a means of expanding consumer choice and promoting market integration. Where the distributorship is conferred exclusively on one trader, the market has been opened up, albeit through the creation of a restricted number of outlets. Provided there exist competing products so that interbrand competition remains healthy, the consumer stands to profit. There are, accordingly, strong arguments for deeming such agreements immune from Art. 81(1) altogether unless, as in the Grundig case, the parties have included an extra restriction, such as absolute territorial protection through suppression of third party importers. It is necessary to assess whether, without the agreement, the market would have been penetrable at all. If not, the agreement opens up the market rather than distorting it.

Exclusive purchasing agreements are the mirror image on the demand side of exclusive distribution agreements; generally they improve distribution. They also assist market interpenetration and so greater consumer choice and indirectly improve distribution systems and promotion of the contract products at little or no cost to the retailer. However, as with any contract of exclusivity, they limit the buyer’s freedom of choice and run the risk of restricting competition and so breaching Art. 81(1).

Franchising agreements are a specific type of distribution agreement marked by the additional element of licensing of the franchisor’s know-how. Generally they are beneficial to competition, for they allow the franchisor to penetrate new markets without set-up costs and allow the franchisee immediate start up upon the basis of the franchisor’s methods and reputation. Franchising agreements may be of the nature of a service franchise, a production or manufacturing franchise, or a distribution franchise.

The BER which, as noted, replaced the three previous vertical block exemptions applies to:

Agreements or concerted practices entered into between two or more undertakings each of which operates, for the purposes of the agreement, at a different level of the production or distribution chain, and relating to the conditions under which the parties may purchase, sell or resell certain goods or services (‘vertical agreements’).

Except those involving a supplier or a buyer which enjoys a market share exceeding 30% of the relevant market, an association of distributors with a combined annual turnover exceeding ECU50 million and competing undertakings (entering a non-reciprocal vertical agreement) where the buyer is a manufacturer (and not merely a distributor) with an annual turnover exceeding ECU100 million. The regulation provides a black list excluding certain hardcore restrains, principally the imposition of fixed or minimum resale prices, certain resale conditions and forms of territorial protection, ‘non-compete’ clauses except of short duration, restrains following termination of the agreement and certain sales restrictions within a selective distribution system, but sets out no white list.

The regulation will, says the Commission, create a ‘safe harbour’ for vertical agreements, especially for parties which are small and medium-sized undertakings, and allow for a greater degree of suppleness, lessening the ‘straightjacket’ effect of present block exemptions, without sacrificing legal certainty.5

Horizontal Agreements

At first sight horizontal agreements seem less likely to have redeeming virtues than vertical agreements, for by definition parties to a horizontal agreement are already in actual, or at least potential, competition with each other. Nevertheless, even though in some such agreements resulting benefits to the consumer are hard to find, some categories of horizontal agreements do give rise to advantages which have to be balanced against the restraints on competition which they also involve.

Price Fixing Agreements

Instances of price fixing agreements, decisions or concerted practices have included: setting prices at specific levels; adopting a common price list; setting and/or observing ‘list’ or ‘official’ prices; setting target prices; setting minimum or maximum prices, or maximum discounts; setting or jointly publishing recommended, ‘acceptable’ or ‘reasonable’ prices; agreeing the amount, rate and/or timing of price increases or announcement thereof; agreeing to refrain from price cutting; agreeing not to make public any deviation from published prices or to announce rebates; appointing a price leader for individual buyers; agreeing to maintain price differentials amongst various buyers; and collective resale price maintenance6. Joint conduct ancillary to a price fixing agreement (or to any cartel) such as intimidation of or retaliation against an undertaking which refuses to join the cartel is also prohibited.

Art. 81(1) applies, however, not only to outright price fixing but equally to any agreement or practice the effect of which is to suppress price competition or to distort the normal formation of prices on the market. So, agreements for pooling profits or indemnifying losses, intervention buying, joint prohibition of discounts or rebates, joint setting of terms and conditions of sale and related services such as delivery prices, payment and handling charges7 are all caught. It is quite irrelevant that prices agreed or concerted upon cannot be achieved, or that a party or parties to them had no intention of adhering to any accommodation made or that it leads to an increase or decrease in price.8 They are all hardcore breaches of Art. 81(1).

An agreement may be condemned as having the prohibited effects even if the parties do not always abide by it,9 although in some decisions by the Commission this has been found to reduce the gravity of the infringement and lead to lower fines.

Indirect Influences on Pricing Policies

Restrictions inhibiting price competition indirectly are also indirectly prohibited. In Virgin Aluminium case, the Commission treated the rules of a producers’ association as an agreement between the members who signed them. They were found to have at least the object of restricting competition although they had not been enforced. Indeed, the excess supply which led to their introduction had been reduced by an increase in demand so soon that the rules had never come into play but they had been retained as a safety net. The Commission considered that their existence, supported by an arbitration clause, was likely to discourage any action contrary to their letter and spirit. It added that their object would be to restrict competition if that was a reasonably foreseeable consequence of the application of the rules. Labelling the rules as being ‘against unfair competition’ did not prevent the application of Art. 81. The members agreed not to make ‘destructive sales below cost.’ Not only did this go beyond the law of unfair competition in some member states, it was so vague and difficult to apply that it was likely to discourage some commercial initiatives.

Production Quotas

A quota agreement is a type of market sharing whereby competitors fix or limit the quantity of goods (or less commonly services) they each produce and/or market. It is an indirect means of, and goes hand in hand with, price fixing, its purpose being artificially to adjust supply to demand. As price is closely a function of supply, production quotas may directly or indirectly affect price competition. Quota arrangements are frequently an ancillary to price fixing agreements or practices.10 It is a classic form of market sharing and a hardcore breach of Art. 81(1), being expressly prohibited as a limitation or control of production within the meaning of subparagraph (b).

Exchanging Price Information

Agreements to exchange information about prices that have been charged or paid might infringe Art. 81. According to the Notice issued in 1968 on co-operation agreements,11 however, collaboration in producing joint statistics is permitted. The exchange of information about competitors is most likely to restrict competition when there are few of them, it takes place very rapidly, perhaps by e-mail or through a trade association, when it gives sufficient detail to identify specific contracts and enables competitors to react.

Where information about a discount that has been made to obtain an important order by one of only a few suppliers must be disseminated immediately to competitors, there is little incentive to make the price cut. Competitors are likely to make a similar cut when the next big order comes along, even if they do not actively retaliate against a firm that has rocked the boat. Consequently, the initial discounter is unlikely to obtain additional turnover in the long run. In COBELPA,12 the Commission stated that there is no objection to national trade associations collecting and disseminating statistical information indicating the industry’s output and sales, provided that individual firms cannot be identified. Under that agreement, however, the output of and prices charged by individual companies were disseminated, and the Commission proceeded to condemn the agreement although the parties had amended it to comply with the Commission’s suggestions.

The Commission even objected to the agreement to exchange published price lists, on the grounds that it was easier to get them directly from competitors, and was an indication that they were not competing normally. In its decision on Vegetable Parchment13, the Commission added that sending invoices etc., on an individual basis would be evidence of a concerted practice, since individual information is not necessary for the preparation of trade statistics.

ARTICLE 82

The text of Art. 82 provides that:

Any abuse by one or more undertakings of a dominant position within the common market or in a substantial part of it shall be prohibited as incompatible with the common market in so far as it may affect trade between Member States.

Such abuse may, in particular, consist in:

  1. directly or indirectly imposing unfair purchase or selling prices or unfair trading conditions;
  2. limiting production, markets, or technical development to the prejudice of consumers;
  3. applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; and
  4. making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or commercial usage, have no connection with the subject of such contracts.

Thus the first paragraph of the article sets out the prohibition of any abuse of a dominant position within the common market if it may affect trade between Member States. The second paragraph contains a list of examples of abusive practices.

The examples of abusive conduct listed in Art. 82 correspond largely to the examples of illegal agreements mentioned in Art. 81. Both articles also contain the same jurisdictional requirement that trade between Member States must be affected. The main distinguishing features between the two provisions, therefore, are (a) that under Art. 82 an individual firm’s practice may come under scrutiny, while under Art. 81 a plurality of actors is required, (b) that for Art. 82 to apply the firms concerned must hold a dominant position on the market, whereas under Art. 81 it suffices that the effect on competition be ‘appreciable’, and (c) that the abuse of a dominant position cannot receive the benefit of an exemption, unlike agreements or practices caught by the ban in Art. 81(1) which may be exempted pursuant to Art. 81(3).

Collective Dominance And Oligopolies

Art. 82 refers to an abuse ‘by one or more undertakings’ of a dominant position. The Commission has been trying to establish collective dominance when two or more firms act under a cartel agreement and when a merger will leave very few suppliers or buyers, who are unlikely to compete in ways that can be copied easily and fast.

In the Italian Flat Glass14 case, the CFI accepted that collective dominance might exist when, for instance, two independent undertakings shared a technological lead, perhaps through a technology licence, enabling them to behave to an appreciable extent independently of their competitors. It denied, however, that the Commission could ‘recycle the facts’ from which it had established an agreement contrary to Art. 81(1) to establish abuse of a dominant position. It also observed that, before finding a dominant position, the Commission would have to define the relevant market realistically and establish a lack of imports from outside the geographical area accepted.

The Commission has continued to allege joint dominance, for instance, by the members of a shipping conference, and under the merger regulation. In the Gencor15 case, the Commission and CFI analysed the factors that might lead two companies each supplying about 40% of the market not competing aggressively on price. The Commission described the market as oligopolistic. In the Compagnie Maritime Belge16, the CFI concluded that it is settled law that a dominant position may be collective only when the undertakings are linked in such a way that they adopt the same conduct on the market.

In the Gencor case, the CFI had also expanded the concept of oligopolistic dominance in the context of a merger in two ways by holding (1) that it was not necessary to establish links between the firms in an oligopoly and (2) that oligopolistic inter-dependence amounted to a link that would make it easier to establish joint dominance. The ECJ applied the same test in Compagnie Maritime Belge17 and stated that to establish joint dominance the Commission must find that the undertakings acted as a single entity, that together they enjoyed a dominant position and that it had been abused.

UNFAIR PRICES

Excessive Pricing

There has only been one case in that the Commission found excessive pricing simpliciter, and this finding was annulled by the ECJ.18 The Court added obiter that ‘charging a price which is excessive because it has no reasonable relation to the economic value of the product supplied is … an abuse’, but supplied no indication as to what might constitute an excessive profit margin or a fair price.

Predatory Pricing

If able to withstand losses at least in the short term, a dominant undertaking may charge prices lower than the production cost of a good or service in order to drive lesser, more vulnerable, competitors from the market. In AKZO19 the Court supplied a working definition of predatory pricing as prices set lower than average variable cost. This definition was reapplied subsequently in Tetra Pak II20, in which the Court added that predatory pricing was always abusive conduct, for it had ‘no conceivable economic purpose other than elimination of a competitor’.

Discriminatory Pricing

For dominant undertakings, there is a danger that differing prices may fall foul of Art. 82(c) for ‘applying dissimilar conditions to equivalent transactions with other parties, thereby placing them at a competitive disadvantage’. It is generally accepted that Art. 82 does not impose upon dominant undertakings a duty to charge identical prices for all transactions. Quantity discounts are, for example, normally unobjectionable. However, any artificial price differences, and certainly price discrimination based upon nationality of the buyer, is abusive conduct unless it can be objectively justified by, for example, variation in the conditions of marketing and intensity of competition.21

Attempts further to seal off the home market by offering lower prices in border areas where imports might be more attractive to buyers is equally abusive, as is a policy of export rebates whereby rebates are offered to buyers intending to export their final product and is a differential tariff structure offered by a rail carrier so as to distort freight movement to its advantage.22 However, it appears that selective price cutting in order to match that of a competitor, assuming prices are not predatory, is abusive only if its purpose is to eliminate the competitor from the market.23

Loyalty or Fidelity Rebates and Discounts

Loyalty or fidelity rebates are closely associated with discriminatory pricing. A dominant undertaking offers price rebates, bonuses or other form of payment in return for an undertaking from a buyer not to purchase from the formers competitors. Unless it is one related to efficiencies, a rebate is not a quantity discount but is designed to secure loyalty (or ‘tie’ the buyer) at the expense of competing suppliers.24

‘English clauses’ or ‘competition clauses’, whereby a buyer may secure supplies from competing suppliers without loosing the benefits of a fidelity rebate but only in circumstances in which the competing supplier offers more attractive terms which the dominant undertaking does not wish to meet, are less restrictive of competition than fidelity rebate, but are nonetheless abusive.25

Loyalty secured even by means other than rebates or discounts can fall foul of Art. 82. Where a dominant undertaking insists upon long term and exclusive supply contracts with its customers, it can be abusive if the effect is such as to hinder the emergence and development of competing suppliers.

Essential Facilities Doctrine

Where supplies or services are refused in order to reduce or eliminate competition, such a refusal will constitute abuse.

In RTE, BBC, ITP v Commission26 the CFI upheld a decision of the Commission which condemned, for the first time, a refusal to supply a party with whom it had no pre-existing commercial relationship. Here the TV companies were seeking to exploit their copyright in TV programme listings to prevent competitors from publishing TV programme guides in competition with their own publications, to the detriment of consumers. The ECJ upheld this decision on appeal. The ECJ focused on the fact that the TV companies were the sole source of the information which is needed to produce weekly listings guides for all channels, that there was a market for such a product and the product was not being produced because of the behaviour of the TV companies, and that the TV companies were therefore without objective justification seeking to reserve a secondary market (TV guide publishing) to themselves.

This has come to be known as the ‘essential facilities’ doctrine. By this we mean that an undertaking which owns or controls a facility that is necessary for a business, but which could not practically be reproduced by a competing entity or a potential competing entity, has an essential facility. On this basis, the Commission has assimilated the practice of imposing restrictions on the availability of service contracts to a refusal to supply, although it may also be characterised as the imposition of unfair trading conditions or a limitation on production or markets etc. Thus, in the Magill case, the TV companies were required to give the information about their programmes to rival publishers and, in the Sealink27 case, involving access to a port, the ferry company controlling access to the port was not permitted to deny access or schedule departures to the detriment of rival companies providing ferry services out of that port without objective justification.

In any event, caution must be given with the essential facilities doctrine if it becomes too accessible a remedy for neutralising a legitimate advantage enjoyed by a dominant competitor or justification for seeking access to an infrastructure in which it may have invested heavily to create. In its most recent consideration of an implicit essential facilities doctrine in Bronner28 the ECJ said that an undertaking which controlled a very large share of the daily newspaper market and also the only nation-wide home delivery system for newspapers in a Member State could not be compelled by Art. 82 to provide access to the system to a competitor because of the existence of other distribution systems (post, shops, kiosks) and the possibility of the competitor setting up its own home delivery scheme. The test therefore seems to be that access to the facility must be indispensable- according to the Court, ‘inasmuch as there is no actual or potential substitute in existence’ or, the dominant undertaking has a ‘genuine stranglehold’ on the related market.

Dealing or Supplying on Less Favourable Terms

Related to refusal to deal is dealing or supplying on less favourable or discriminatory terms. These fall within the rubrics of ‘unfair trading conditions’ [Art. 82(b)] or ‘applying dissimilar conditions to equivalent transactions’ [Art. 82(c)], and are prohibited. It applies equally to terms for access to essential facilities. Also, according to the 1998 World Cup29 case, dealing on discriminatory terms based upon nationality or residence is a clear breach of Art. 82. In this case the Commission, rather than relying on data, information and facts and applying any tests, merely exercised its judgement/discretion and made a series of statements saying the World Cup was a separate market and then proceeded to state that the requirement of a postal address in France in order to obtain tickets was discriminatory and imposed unfair trading conditions; this caused a limitation of the market, especially since the demand was greater than the number of tickets offered.

Concluding Remark

The Union, and in particular the Commission, have been assigned such broad powers in the competition field in order to ensure the application of the principle, enshrined in the Treaty, of "an open market economy with free competition". Since its adoption more than 40 years ago, the Treaty acknowledges the fundamental role of the market and of competition in guaranteeing consumer welfare, in encouraging the optimal allocation of resources, and in granting to economic agents the appropriate incentives to pursue productive efficiency, quality, and innovation.

Consumers and companies alike are increasingly citizens of a globalised economy. Hence, the Commission has the increasingly difficult mission of ensuring that the integrating markets are made and maintained competitive, thus making the globalisation process both economically more efficient and sociably more acceptable.

Competition policy is first and foremost concerned about efficient market functioning, even in cases where pricing itself is not the object of proceedings. It is therefore no wonder that price analysis is embodied as a basic tool in the economic analysis that EU competition law calls for.

  1. Notwithstanding, the Treaty provides six instances of ‘integration’ or comprehensive’ clauses whereby the subject areas in question ought to form part of Community policy throughout its activities. The ECJ has taken notice of Treaty adherence to social justice in order to determine whether collective bargaining falls within the scope of Art. 81(1)- which it does not: Case C-67/96 Albany International v Stichting Bedrijfspensioenfonds Textielindustrie, [1999] ECR I-5751.
  2. Cases T-213/95 & 18/96 Stichting Certificatie Kraanverhuurbedrijf v Commission, [1997] ECR II-1739.
  3. Decision 545/64 (Re Grundig’s Agreement), [1964] CMLR 489; Cases 56 & 58/64 Etablissements Consten SA v Commission, [1966] ECR 299.
  4. Regulation 2790/1999 on the application of Art. 81(3) of the EC Treaty to categories of vertical agreements and concerted practices, OJ 1999 L336/21.
  5. Guidelines on vertical restrains attached to the draft regulation, OJ 1999 C270/12.
  6. Case 48/69 ICI v Commission (Dyestuffs), [1972] ECR 619; Decision 86/398 (Polypropylene), OJ 1986 L230/1; Polypropylene case; Decision 1999/60 (Pre-Insulated Pipes), OJ 1999 L24/1; Case 72/22 Vereniging van Cementhandeleren v Commission [1972] ECR 977; Decision 92/444 (Scottish Salmon Board) OJ 1992 L246/37; Decision 1999/243 (TACA), OJ 1999 L95/1; Decision 83/361 (Vimpoltu), OJ 1983 L200/44; Decision 1999/210 British Sugar), OJ 1999 L76/1; Case 73/74 Groupement des Fabricants des Papiers Peints de Belgique v Commission, [1975] ECR 1491; Decision 94/815 (Cement), OJ 1994 L343/1.
  7. Decision 91/299 (Soda Ash), OJ 1991 L152/21; Decision 84/405 (Zinc Producer Group), OJ 1984 L220/27; Cases T-68, 77 & 78/89 Societa Italiano Vetro v Commission (Flat Glass), [1992] ECR II-1403; Cement case.
  8. Cases T-213/95 & 18/96 Stichting Certificatie Kraanverhuurbedrijf v Commission, [1997] ECR II-1739.
  9. Case 246/86 Belasco v Commission, [1989] ECR 2117.
  10. Pre-Insulated Pipes case.
  11. OJ 1968, C84/14.
  12. Case T-77/94 Vereniging van Groothandelaren in Bloemkwekerijprodukten, [1977] ECR II-759.
  13. Decision 78/252 (Vegetable Parchment), [1978] 1 CMLR 534. Cases T-68, 77, 78/89
  14. Italian Flat Glass, [1992] ECR II-1403
  15. Case T-102/96 Gencor Ltd v Commission, [1999] ECR II-753.
  16. Cases T- 24, 26 26/93 Compagnie Maritime Belge Transports SA and Others v Commission, [1996] ECR II-1201.
  17. Cases C-395, 396/96P Compagnie Maritime Belge Transports v Commission, [2000] 4 CMLR 1076.
  18. United Brands case.
  19. Case 62/86 AKZO v Commission, [1991] ECR I-4449.
  20. Case C-333/94P Tetra Pak v Commission, [1996] ECR I-5951.
  21. United Brands case.
  22. Case C-436/97P Deutsche Bahn v Commission, [1999] ECR I-2387.
  23. Cases C-395 & 396/96P Compagnie Maritime Belge v Commission, [2000]
  24. Cases C-287 & 288/95P Commission v Solvay, [2000].
  25. Hoffmann-La Roche case.
  26. Cases T-69, 70, 76/89 RTE, BBC, ITP v Commission, [1991] ECR II-485.
  27. Decision 1992 (B&I Line/Sealink Harbours & Sealink Stena, [1992] 5 CMLR 255.
  28. Case C-7/97 Oscar Bronner v Mediaprint, [1998] ECR I-7791.
  29. Decision 2000/12 (Comite Francais d’Organisation de la Coupe du Monde) OJ [2000] L5/55.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions