antitrust analysis chart

8/7/2019 Antitrust Analysis Chart

1/17

Horizontal Agreements

US Approach EU Approach


2/17

Sherman Act 1

Interstate Commerce null

Not every, only unreasonable

Per Se Illegal versus ROR for everything else:

1. Horizontal price fixing. Or when parties try to fix at a range orhave vague agreements that lead to price fixing. (Palmer v.

Berg); note that this would require some level of intent and effect

analysis

2. Horizontal output restraints.

3. Boycotts

4. Horizontal market conditions (you take this market, Ill take

this one).

*** Note if you have a pro-competitive justification, summarily if

falls into Rule of Reason, but it must be a justification that thecourts will listen to. Sometimes dont even offer once

(Maricopa) or cant offer one so its not as if everything goes into

ROR

Horizontal Agreements: Burdens and Orders of Theory and

Proof After California Dental

Note: Dont really correlate perfectly with procedural stages like

motion to dismiss. If really narrow it down would start with

summary judgment and then go to discovery and have to hire theeconomist.

Note: Makes it clear that now burden of production after puts

forth pro-competitive justification switches to . This wasnt

clear before.

Step 1: must allege an agreement that theoretically has

anticompetitive potential. If it does, go to Step Two.

Per Se: Dont even allow to articulate a theoretically plausibleprocompetitive justification.

Article 81

Separation between 1 and 3 is historical. Determine if

anti-competitive first and then determine if an exemption

is warranted.

Elements of 1

Step 1: Has to be some agreement: a) All agreements betweenundertakings; or b) Decisions by associations of undertakings and

concerted practices

Step 2: May affect trade between member states. Also remains

trivial to satisfy. Every so often, like in U.S., there is some noise

but doesnt amount to much.

Step 3: Objective Intent Requirement: Object does not mean

looking into subjective intention. Looks at objective purpose onecan infer. Generally talking about hard core restrictions (like per

se i.e. unrelated rivals setting prices). Has list of bad things.

Step 4: Effect has significance requirement. Difference with US:

In order to show effect must have an appreciable effect on trade,

must be significant. Has market tests like 10% in the case of a

horizontal agreement. Also office size.

1 Agreements are void under 2 unless exempted under 3.

Step 5: Can have exemptions for pro-competitiveness under

3: a) Contributes to improving the production or distribution of

goods or to promoting economic or technical progress; b) While

allowing consumers a fair share of the resulting benefit:

5.1 Productive JVs (Cartonboard); but dont want self-interested

regulating (IAZ)

5.2 Full capacity or less than capacity is not a (Zinc); but,

restraining capacity may be a justification (Synthetic Fibers

5.3 Cartel possibility and want to protect consumers and notcompetitors (Insulated Pipes)


3/17

Policy Considerations

General

Over and under deterrence

Market rewards for the most efficient

Ex post and ex ante incentives

Consumer welfare

Concerns about judge/jury mistakes

Cartel

As long as there is no interference with consumer will protect competitors.

Expanding consumer choice?

Why cant you just do it naturally without the anti-competitive possibilities? If natural market would do it.

General Horizontal Agreements

High prices induce more output and entry; lower prices the opposite

Firms may agree not to compete with each other. Keep prices high.

Perhaps more effective to agree to limit output. Divide markets.

Which ones are anti-competitive and which ones are pro-competitive?

Comparison

Implicit significance requirement Significance requirement more explicit

Per se outright illegal, but could get naked ROR. Hardcore outright illegal, but block exemptions; some ROR

Rule of Reason: weigh pro-competitive. FTC has safe harbor (3) Weight procompetitive but spelled out more clearly in statute

what to look for; also more considerate of market share

Consumer welfare Consumer welfare dominant, but also pay attention to total

welfare (Mandeville)

Intellectual property rights generally considered procompetitive Intellectual property rights generally considered pro-competitive

Any effect of buyer cartel on national market would be negative;

per se illegal. Dont acknowledge countervailing buyer.

Any effect of buyer cartel on national market would be negative;

per se illegal. Dont acknowledge countervailing buyer.


4/17

Unilateral Conduct



5/17

Sherman Act 2

For monopolization the two basic elements are

Step 1: Monopoly power

1.1 Monopoly power is either: The power to control prices

(Raise prices by restricting own output or by restricting output ofrivals); or the power to exclude rivals (note that these two are

linked to conduct test). How do you know if you have monopoly

power ?

1.1(a) Tendto infer have requisite power to control prices

of rivals from the fact that you have a high market share

and high barriers to entry. Tend to go down into 60% and

maybe 50% in lower court decision.

1.1(b) SNIP test (in mergers) could a monopolistic sustain

5% price increase without losing business to make itunprofitable. If would 5% increase would make them

unprofitable, keep broadening because have substitutes. If

can sustain the 5% increase, thats the market. Sometimes

mean profit maximizing and sometimes mean lose money.

1.1(b)(1) Still want to look at entry barriers.

1.1(c) Everyone has some ability to price a little bit over

marginal cost but not too much or else customers would

switch.

1.2 Problems with defining the market:

1.2(a) Not symmetrical

1.2(b) Varies by expansion abilities of other companies.

1.2(c) Doesnt consider full capacity outside of market (but

does consider excess capacity; EU considers full capacity).

1.2(d) Average profit versus marginal profits

1.2(e) Supply substitution not taken into account in market

definition, but rather in defining which firms and capacity are

in the defined market. Are considered when a firm has

existing assets that likely would have shifted or extended intoproduction and sale of the relevant product within one year.

1.2(f) Still dont have competitive price for SNIP

Article 82

Step 1: Dominant position. Might be lesser market power than

monopoly power. Its not entirely clear.

It does include agreements but consider that later.

1.1 Monopoly power is either: The power to control prices (Raise

prices by restricting own output or by restricting output of rivals);

orThe power to exclude rivals (note that these two are linked toconduct test). Tend to infer have requisite power to control prices

of rivals from the fact that you have a high market share and high

barriers to entry. Europe also says can infer market power from

the existence of high market shares. The percentages may be a

little lower to above 50% absent some strong evidence to the

contrary. It at least creates a presumption and tips burden to

defendant. 25% to 50% no presumption either way. Below 25%

presume no market power and below 10% consider virtually

impossible.

1.2 Consider demand substitutability (Uses 5-10%presumptive

share and pretty clear that you lose money, rejects cellophane

fallacy), supply substitutability (short term vague definition),

and potential competition (Dont consider uncommitted

entrance into market because depends on conditions of entry; Do

consider them after market share when ask competitive

significance and entry barriers).

1.2(a) Considers full capacity and excess capacity (EC

Guidelines)

1.3 Problems with defining market

1.4 Kodak situation substitution is affected by relationship

between primary and secondary market (EC Guidelines

Additional Considerations).

1.5 Define broad definition in a relaxed way, i.e. bananas

(United Brands).

1.6 Do not consider countervailing seller power as a whenbuyer monopoly but will consider in defining market; Buyer

market power would be okay if countervailing seller power


6/17


General



Ex post and ex ante incentives (Otter Tail, Aspen Ski. IMS, Spectrum Sports)


Why so many statutes?

Consumer Welfare

Concerns about judge/jury mistake

Cartel




Monopoly Generally

One firm might be so big so that it can reduce entry into the field and control prices.

Marginal cost versus total cost

Dont have to worry about anyone undercutting you so you can set prices higher. Wont set too high because no one

will buy but will set it so that the prices you are losing by raising prices are less that what you gain by the higher price. Some

consumers arent getting the product. Because of an inefficient price.

Hardly are any monopolies. Usually just really huge share of the market. Assume all fringe players are producing at

full output and efficiently. Subtract them away and what is left is the residual demand. The dominant firm can act like a

monopolist with regard to this residual demand.

Individual buyer Monopsonist Will drive prices up, but not too high because has to account for the lost profits from

other purchasers not buying (just like monopoly). Differences from economists definition of the market.

Government regulation pre-existing (OtterTail)

Property rights (Otter Tail, Aspen Ski).

Comparison

Market Definition

Distinguish market from monopoly power, although not well. Use dominant position which is at minimum market power, but

probably less than monopoly power.

Recognize attempted monopolization Do not recognize attempted monopolization. Because do not, ifabuse is on market that want to gain dominance in, no foul.


7/17

Can infer market power from market share. Higher percentage. Can infer market power from market share. Lower percentage.

Also consider other factors like barriers to enter, deep pocket,

hold some essential infrastructures.

Difficult to define market. Consider excess capacity but not full

capacity in other markets. Cellophane Fallacy and SSNIP.

Difficult to define market. Consider excess and full capacity in

other markets. Similar market definition: substitutability of

supply and demand.

Uses 5% presumptive test. Lose money or profit maximizing. Uses 5-10% presumptive test. Lose money.

Supply substitution not taken into account in market definition,

but rather in defining which firms and capacity are in the defined

market. One year guidelines.

Supply substitution helps to define market. Vague short term

guideline.

Tying to secondary market is bad. Tying to secondary market is bad.

Doesnt consider countervailing market power. Will consider countervailing power not as a but to perfect own

market share.

Conduct

Difficult to determine bad conduct. Difficult to determine bad conduct.

Conduct element of exclusion. Has causal link of obtaining and

maintaining.

Conduct element of exclusion and exploitation (which doesnt

have causal link)

Predatory pricing standard includes recoupment. Predatory pricing standard may not include recoupment and

instead below short-term maximizing price.

Predatory pricing test concerns short term profit maximization

test.

Predatory pricing test concerns short term profit maximization

test.

Excessive pricing not considered automatically exploitative. Excessive pricing considered auto exploitative.

Prohibits price discrimination when leads to anticompetitive

effect

Prohibits price discrimination when leads to anticompetitive

effect; but looks at efficiency of downstream rival, as well as

selectively employed pricePrice squeeze test different Price squeeze test different

More prongs on exclusion/duty to deal test. Fewer prongs on exclusion/duty to deal test

Power not necessarily bad if obtained it through efficiencies. Cant exploit


8/17

Vertical Agreements That Restrict Dealing With Rivals


Relevant Statutes

Sherman 1

Sherman 2 also considers because of monopoly power potential

and using it to stamp out rivals.

FTC 1 addresses nearly everything. FTC can condemn

exclusionary agreements without proof that a substantial share of

the market was foreclosed if those agreements would violate

Clayton Act 3 or Sherman Act 1 if substantial market was

foreclosure was shown.

Clayton 3 also covers because Congress worried about early

court cases suggesting that Sherman Act would not cover tying

agreements. Not just covering agreements not to deal with rivals

but also conditioning discount.

1.0 Exclusive Dealings

1.1 Violation whenever substantial share of the relevant market is

foreclosed even if anticompetitive effects have not been directly

shown and there are redeeming efficiencies. Use ROR for all

exclusive dealings even if market is quite large. Per se legal ifsmall foreclosure.(Tampa Electric); but note some interpretation

mistakes. 40% or more for Sherman 1, but can be less for

Sherman 2 (monopoly).

1.1(a) Can weigh procompetitive and anticompetitive now.

1.1(b) Will aggregate foreclosure on multiple sellers

exclusive agreements (perhaps need conspiracy or only a few

major firms) (Motion Picture); not clear this is still used

today.

1.1(c) Enough that foreclose from most efficient means ofdistribution (Microsoft).

Relevant Statutes

Vertical agreements and restriction in EU law cover something

slightly more specific. Involve three levels: 1) producer whichhas an agreement with 2) distributor which will resale or do

something with product to 3) consumer.

Also covers situation with producer telling buyer that cannot buy

from rivals. EC doesnt call it vertical agreement. Falls under 81

or 82 depending on whether the producer is dominant or not.

Can again be justified if efficiencies under 81(3). If dominant

then will fall under 82 and there is no efficiency exception. Has

block exemption.

1.0 Exclusive Dealings

1.1 Use ROR for all exclusive dealings even if market is quite

large. Per se legal if small foreclosure (EU Guidelines).

1.2 Note that EU distinguishes interbrand from intrabrand

restrictions.


9/17

1.1(d) Bad even if monopolist is not the one to suggest

(Griffith).

1.1 (e) Doesnt matter that other companies are doing it

(Standard Oil).

1.1(f)Wont accept vertical integrations that are shams

(Palmer)

1.2 Dont have to look at entry barriers or other considerations

with Clayton 3 because of may language (Standard Fashion);

however, consider how this is impacted by Tampa Electric and

ROR.

2.0 Tying

Market power in tying market, separate products, tying, someone

was foreclosed. If meet all these conditions enough to condemn

prima facie. The certainly in the EC and probably in the US

can come back with a pro-competitive justification. So far have

not accepted a pro-competitive justification. If could show that in

was least restrictive alternative for pro-competitive justification,

and at that point the would probably have to show anti-

competitive effects that outweighed pro-competitive.

2.1. Tying is illegal when a) Separate products in that sufficient

market to offer separately (Jefferson Parish); b) Tie together

means that you will not sell one product (the tying product that

people want) without the tied product; c) Tying product is the onewith more market power that has to be really strong, more than

30% (Jefferson Parish); d) Have to show market power in the

tying product; e) Non-trivial sales of tied product; f) Maybe no

pro-competitive justification. Quasi per-se rule (Jefferson Parish)

as dont inquire whether there is an anti-competitive effect, but do

inquire as to whether market power in tying market instead of

share foreclosure in tied market. Although may be able to show

procompetitive justifications.

2.1(a) Under Clayton Act 3 tying agreements may be

condemned even if they do not contain specific agreements

2.0 Tying

Market power in tying market, separate products, tying, someone

was foreclosed. If meet all these conditions enough to condemn

prima facie. The certainly in the EC and probably in the US

can come back with a pro-competitive justification. So far have

not accepted a pro-competitive justification. If could show that in

was least restrictive alternative for pro-competitive justification,

and at that point the would probably have to show anti-

competitive effects that outweighed pro-competitive.

2.1 Tying can fall under Article 81(1) when it is part of an

agreement concluded by a non-dominant horizontal or vertical

agreement. It will fall under Article 82 if a dominant positionSafe

harbor when no hardcore restriction and both tied and tying

market are less than 30% then have block exemption.

2.2 Article 81 Consider a) If distinct produce which is determine

by the demand of buyers; b) Assess market power of supplier in

vertical agreement ; c) Asses if procompetitive under Article

81(3) which may not be necessary if quality standards are

legitimate.

Appear to be per se (Microsoft)

Require substantial market foreclosure

2.3(d) If safety considerations, then make guidelines (Tetrapak)

2.3 Article 82 Tying illegal under Article 81: a) tying and tied

goods are two separate markets, b) the undertaking concernedis dominant in the tying product market; c) the undertaking


10/17

not to use the rivals products if the practical effect is to

prevent use or if dont enforce agreements. (United Shoe,

times-Picayune)

2.1(b) Tying law applies even if patented (United Shoe,

International Salt)

2.1(c) No defense that this is what the buyers wanted (United

Shoe);but see Jefferson Parish.2.1(d) No defense of quality standards because could just

require quality standards (International Salt).

2.1(e) May not require substantial share of the market

(International Salt), but modern courts want.

2.1(f) Illegal even when agreement excused buyers if is

unwilling to lower prices fore the tied product to the prices

that rivals were charging

2.1(g) May be permissible if applies to only one buyer

(Jefferson Parish).

2.1(h) ROR is software market and other markets about which

the court has little experience.

2.1(i) After market still requires per se and not ROR (Kodak)

2.1(j) Enough to foreclose most efficient means of

distribution (Microsoft).

2.1(k) After market ties Quasi per se is that dont inquire

whether there is an anti-competitive effect, but do inquire as

to whether market power in tying market instead of share

foreclosure in tied market (Kodak).

3.0: Loyalty and Bundled Discounts

3.1 Is the incremental price less than cost?

3.1(a) Shielded if cost savings in bundle and are less than or

equal to price (Loews, but see Ortho 3.2).

3.1(b) FTC can condemn exclusionary agreements without

proof that a substantial share of the market was foreclosed if

those agreements would violate Clayton Act 3 or Sherman

Act 1 if substantial market was foreclosure was shown.3.1(c) No defense that could escape by paying more (United

concerned does not give customers a choice to obtain the

tying product without the tied product; and d) the tying

forecloses competition, which is subject to discussion

(Tetrapak). Note that can offer separately but just make it

financially better to buy tied (could go under Article 81

though)

2.3(a) Tetrapak Fallacy what if arent distinct because havetied them? Look as to whether on notice.

2.3(b) Distinction between direct tie as in Hilti and Tetripak

and indirect like Microsoftwhich requires a higher standard

of proof. Also only risk of market effects necessary though.

2.3(c) may be able to give objective justifications, making

ROR instead of per se (Microsoft).

2.3(d) If safety considerations, then make guidelines

(Tetrapak)

3.0 Loyalty and Bundled Discounts

3.1 Per se illegal if monopolist offers loyalty, sharp distinction

from bundled/volume discounts which may or may not be illegal.


11/17

Shoe, Brown Shoe, Advance business Systems).

3.1(d) No that someone else is or could do (SmithKline)

3.2 Cross over with predatory pricing and bundled discounts

(Ortho) Not enough that price is more than AVC but incremental

price could be less than AVC, thus exclusing rivals. a) Could

make a claim by showing that the incremental price is below

AVC; or b) If the is at least as efficient as but s pricingmakes it unprofitable for to continue to produce. The test for

figuring out if unprofitable is if not profitable or if harder if

incremental price (price of A and B bundled minus price of A) is

less than the AVC of (some cases stop here) which is more

than or equal to rivals AVC of B (one possible approach in

Ortho).

3.3Alternate controversial theory: Rejects a defense if bundled

discount price is about the cost of making? Enough that

foreclosed because monopoly and no pro-competitive justification

(LePage).


General





Consumer welfare Concerns about judge/jury mistakes

Cartel




Vertical Agreements Generally

Concerned about trying to get a monopoly, getting rid of consumer surplus, price discrimination, market foreclosure of

(potential) rivals, stand alone inflated prices. Firms with market power might have incentives to enter into agreements withsuppliers or buyers to try to exclude rivals, diminish their efficiency (prop up market/monopoly power), or impede


12/17

expansion/entry.

Price discrimination among buyers that distorts their ability to compete downstream. Also concerns about restraining resale.

Price discrimination by itself is not anti-competitive or illegal, only is if anti-competitive

How do we tell the difference between bad restrictions and restrictions that are part of legitimate business.

Agree out of collective action problems.

The monopoly in one town.

What is the correct baseline of foreclosure?

Tying

Economic assumptions in tying cases that may not extend beyond nuts and bolts

May be separate markets depending on the violation

Should we include market foreclosure?

Comparisons between vertical integration and merging.

Comparison

Exclusive Dealings

All vertical agreements considered together. Restrictions intra brand distinguished from inter brand, leavingimplications for exemption.

Can weigh procompetitive and anticompetitive Can weigh procompetitive and anticompetitive

ROR for all exclusive dealings even if market is quite large. Per

se legal if small foreclosure

ROR for all exclusive dealings even if market is quite large.

Per se legal if small foreclsoure

Distinguish monopoly exclusive dealings Distinguish monopoly exclusive dealings

Tying

Similar test for tying high market power (30% not enough) but

does not require market foreclosure.

Similar test for tying but does have safe harbor of 30% or less and

requires market foreclosure. Artilce 82 similar to Jefferson

Parish.Dont recognize quality standards argument Skeptical of quality standards argument.

Examines market. Examines market.

Considers whether separate products Considers whether separate products

Treats monopolies under different statute. Treats monopolies under different statute.

Quasi per se. May get full review (i.e. whether foreclosed under Article 82 and

procompetitive justifications under Article 81)

Loyalty and Bundled Discounts

Is the incremental price less than cost of the ? Per se illegal if monopolist offers loyalty, sharp distinction from

bundled/volume discounts which may or may not be illegal.


13/17

Mergers


Clayton Act 7 has may language. Unclear whether requring

more probable than not as in Clayton Act 3. But has to be

reasonable probability. Might only be reasonable likelihood ofsuccess.

Must notify

1.0 Illegal if Large unilateral effects or oligopolistic

competition will occur.

1.1 Initial Inquiry

1.1(a) HHI > 1800 and HHI of > 100.

1.2(b) If unilateral effects and uncoordinated (must be more

than 35% in US; 25% in EC)1.3 If low market entry barriers may be allowed

1.2 Even if the case survives those first levels of inquiry, might

still allow if redeeming efficiencies, as in ROR. Emphasize that

must be related to the merger. Also failing firm defense.

2.0 Horizontal Mergers

2.1. Differentiated markets (Staples).2.2 Dont recognize countervailing rival (Heinz)

Must notify

Early merger law didnt have a merger article so focus on whetheryou did something under 82 that created a dominant position.

Then adopted a merger regulation that had to prove a

concentration (same thing as merger in US) that creates or

strengthens a dominant position. Dominant position not as strict

as monopoly. Often would strain to find significant market shares

and in some cases go down to as low as 25%. Then realize that to

go after oligopolistic coordination it is a collective dominant

position. This left out unilateral effects on a differentiated market

and to go after that have adopted regulation that enough to show

that merger has significantly impeded competition (dont have toshow dominant position).

1.0 Illegal if Large unilateral effects or oligopolistic

competition will occur.

1.1 Initial Inquiry

1.1(a) Market share of more than 50% and unlikely to be

concerned with post-merger HHI between 1000-2000 and

below 250 or merger with post-merger HHI above 2000 and

below 150 absent special circumstances.1.1(b) If unilateral effects and uncoordinated (must be more

than 35% in US; 25% in EC)

1.1(c) If low market entry barriers may be allowed

1.2 Even if the case survives those first levels of inquiry, might

still allow if redeeming efficiencies, as in ROR. Emphasize that

must be related to the merger.

2.0 Horizontal Mergers

2.1. Differentiated markets (Staples).


14/17

2.3 Enough that OC is possible for FTC (Heinz). Court position

different from guidelines/agency practice: if you have a merger

that creates a highly concentrated market, then up to to show

that the factors affecting likelihood of OC, are weaker here than

in average industry.

2.4 Market realities of OC: may depend not just on entry but

ability for rivals not part of the OC to expand, as well asparticular buyers that are large and powerful and could disrupt

OC.

3.0 Vertical Mergers

3.1 Hardly pay attention to them (Guidelines)

4.0 Conglomerate Merger

4.1 Looks at evidence that would consider entering market if

prices increase. Really only concern is that will eliminate

potential competition.

2.2 Dont recognize countervailing rival (Heinz)

2.3 OC will get worse (Heinz)

2.4 Market realities of OC: transparency, deterents from long term

policy, the foreseeable reaction of current and future competitors

and consumers would not jeopardize the results expected from the

policy

2.4 Expanded to 4-3 situations (Airtours)2.5 Dont need to have retaliatory mechanism for OC (Airtours)

3.0 Vertical Mergers

3.1 More aggressive (GE Honeywell)

4.0 Conglomerate Merger

4.1 EU is broader based on portfolio theories that might enablesome sort of bundling across products.


15/17


General





Consumer welfare Concerns about judge/jury mistakes

Cartel




Mergers

Unilateral affects on price via monopoly power (even in differentiated market like Crest versus Sensodyne)

Oligopolistic coordination Assumption on coordination that may vary by industry

Dont need tests if can figure out price effects

Hard to see vertical as a problem since so many efficiencies (views in Cadence Design)

How to know if OC is possible (Airtours)

Comparison

Must notify; works through agency Must notify; works through agency

Slightly different HHI levels Slightly different HHI levels

Higher market percentage for unilateral and uncoordinated Lower market percentage for unilateral and uncoordinated

Dont recognize countervailing rival Sometimes will recognize countervailing rivalOC is possible for FTC, or must show less likely for Court OC will get worse

Look at market realities to determine if OC Look at market realities to determine if OC, but more explicit

about rivals and competitors and powerful buyers.

In US probably easier to show on 4-3, etc. that unilateral action is

likely instead of OC.

4-3 can show OC

Less aggressive on vertical. More aggressive on vertical

Looks at market at issue in conglomerate merger Looks at more markets in conglomerate merger


16/17

Relevant Laws Reference:

Sherman Act 1: Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce

among the several states or with foreign nations, is declared to be illegal. Every person who shall make any contract or engage in any

combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony, and, on conviction thereof, shall be

punished by fine not exceeding $100,000,000 if a corporation or if any person $1,000,000 or by imprisonment not exceeding 10 years,

or by both said punishments, in the discretion of the court.

Article 81

1. The following shall be prohibited as incompatible with the common market: all agreements between undertakings, decisions by

associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or

effectthe prevention, restriction or distortion of competition within the common market and in particular those which

(a) directly or indirectly fix purchase or selling prices or any other trading conditions;

(b) limit or control production, markets, technical development, or investment;

(c) share markets or sources of supply;(d) apply dissimilar conditions to equivalent transactions with other trading; parties, thereby placing them at a competitive

disadvantage;

(e) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or

according to commercial usage, have no connection with the subject of such contracts

2. Any agreements or decisions prohibited pursuant to this article shall be automatically void.

3. The provisions of 1may, however, be declared inapplicable in the case of:

Any agreement or category of agreements between undertakings;

Any decision or category of decisions by associations of undertakings; Any concerted practice or category of concerted practices,

Which contributes 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 which does not

(a) Impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives

(b) Afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question

Sherman Act 2: Every person who shall monopolize or attempt to monopolizeany part of the trade or commence among the

several states or with foreign nations, shall be deemed guilty of a felony.

Robinson-Patman Act: It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or


17/17

indirectly, to discriminate in price between different purchasers of commodities of like grade and qualitywhether the effect of such

discrimination may be substantially to lessen competition or tent to create a monopoly in any line of commerce, or to injury , destroy,

or prevent competition with any person who either grants or knowingly receives the benefits of such discrimination, or with customers

of either of them.

FTC 5: Unfair methods of competition in or affecting commerceare hereby declared unlawful.

Article 82: 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:

(a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;

(b) limiting production, markets or technical development to the prejudice of customers;

applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage

(d) making the conclusion of contracts subject to accepts by the other parties of supplementary obligations which, by their nature oraccording to commercial usage, have no connection with the subject of such contracts.

Clayton 3: It shall be unlawful for any person engaged in commerce, in the course of such commerce, to lease or make a sale orcontract for sale of goods, wares, merchandise, machinery, supplies, or other commodities, whether patented or unpatented, for use,

consumption, or resale within the United States or any Territory thereof or the District of Columbia or any insular possession or otherplace under the jurisdiction of the United States, or fix a price charged therefor, or discount from, or rebate upon, such price, on the

condition, agreement, or understanding that the lessee or purchaser thereof shall not use or deal in the goods, wares, merchandise,machinery, supplies, or other commodities of a competitor or competitors of the lessor or seller, where the effect of such lease, sale, or

contract for sale or such condition, agreement, or understanding may be to substantially lessen competition or tend to create a

monopoly in any line of commerce.

Clayton Act 7: No person shall acquire the whole or any part of the assets of another person where in any line of commerce or in

any section of the country, the effect of such acquisition may be substantially to lessen competition or to ten to create a monopoly.

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