Direito da Concorrência na União Européia

Programa Jean Monet

Prof. Rafael Pinho Senra de MoraisFGV Direito Rio

Programa

• I – Revisão e Introdução

• II – Mercado Relevante e Poder de Mercado

• III – Defesa da eficiência econômica

• IV – Atos de Concentração

• V – Práticas Anticompetitivas

Antitruste na Europa

• Foco no excedente do Consumidor, mas aceitam-se argumentos pró-eficiência.

• Disposições anti-truste já estavam nos Tratado de criação da própria EEC e EC.

• Preocupação (adicional e primordial) com integração do mercado comum.

• Artigos 81 (85, 101) e 82 (86, 102)

• 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 effect the 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 paragraph 1 may, 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.

• 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 consumers;• (c) 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 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.

CADE: Abuso do Poder Econômico

• Art. 20. Constituem infração da ordem econômica, independentemente de culpa, os atos sob qualquer forma manifestados, que tenham por objeto ou possam produzir os seguintes efeitos, ainda que não sejam alcançados:

• I - limitar, falsear, ou de qualquer forma prejudicar a livre concorrência ou a livre iniciativa;

• II - dominar mercado relevante de bens ou serviços; • III - aumentar arbitrariamente os lucros;• IV - exercer de forma abusiva posição dominante.

• § 1º A conquista de mercado resultante de processo natural fundado na maior eficiência de agente econômico em relação a seus competidores não caracteriza o ilícito previsto no inciso II.

•         § 2º Ocorre posição dominante quando uma empresa ou grupo de empresas controla parcela substancial de mercado relevante, como fornecedor, intermediário, adquirente ou financiador de um produto, serviço ou tecnologia a ele relativa.

•         § 3º A posição dominante a que se refere o parágrafo anterior é presumida quando a empresa ou grupo de empresas controla 20% (vinte por cento) de mercado relevante, podendo este percentual ser alterado pelo Cade para setores específicos da economia.(Redação dada pela Lei nº 9.069, de 29.6.95)

Introdução

• Article 82 of the Treaty establishing the European Community (“Article 82”) prohibits abuses of a dominant position. In accordance with the case-law, it is not in itself illegal for an undertaking to be in a dominant position

• and such a dominant undertaking is entitled to compete on the merits.

• However, the undertaking concerned has a special responsibility not to allow its conduct to impair genuine undistorted competition on the common market.

• Article 82 is the legal basis for a crucial component of competition policy and its effective enforcement helps markets to work better for the benefit of businesses and consumers.

• This is particularly important in the context of the wider objective of achieving an integrated internal market.

Art. 82

• Article 82 applies to undertakings which hold a dominant position on one or more relevant markets.

• Construção doutrinária: collective dominance

• The guidelines only relates to abuses committed by an undertaking holding a single dominant position.– ensuring that undertakings which hold a dominant position do not

exclude their competitors by other means than competing on the merits of the products or services

– protecting an effective competitive process and not simply protecting competitors.

Art. 82

• Casos mais comuns:– Exclusive dealing (ED)– Tying and bundling– Predation– Refusal to supply and margin squeeze

• Casos particulares: – Excessively high price– Certain behaviour that undermines the efforts

to achieve an integrated internal market

Dominance

• “... behave to an appreciable extent independently...”

• “... capable of profitably increasing prices above the competitive level for a significant period of time...”

– constraints imposed by the existing supplies from, and the position on the market of, actual competitors (the market position of the dominant undertaking and its competitors);

– constraints imposed by the credible threat of future expansion by actual competitors or entry by potential competitors (expansion and entry);

– constraints imposed by the bargaining strength of the undertaking’s customers.

Foreclosure

• the position of the dominant undertaking:• the conditions on the relevant market:• the position of the dominant undertaking’s

competitors:• the position of the customers or input suppliers:

– Possible selectivity of the conduct

• the extent of the allegedly abusive conduct:• possible evidence of actual foreclosure:• direct evidence of any exclusionary strategy:

Efficiencies• the efficiencies have been, or are likely to be, realised as a result of the

conduct. They may, for example, include technical improvements in the quality of goods, or a reduction in the cost of production or distribution;

• the conduct is indispensable to the realisation of those efficiencies: there must be no less anti-competitive alternatives to the conduct that are capable of producing the same efficiencies;

• the likely efficiencies brought about by the conduct outweigh any likely negative effects on competition and consumer welfare in the affected markets;

• the conduct does not eliminate effective competition, by removing all or most existing sources of actual or potential competition. Rivalry between undertakings is an essential driver of economic efficiency, including dynamic efficiencies in the form of innovation. In its absence the dominant undertaking will lack adequate incentives to continue to create and pass on efficiency gains. Where there is no residual competition and no foreseeable threat of entry, the protection of rivalry and the competitive process outweighs possible efficiency gains. In the Commission’s view, exclusionary conduct which maintains, creates or strengthens a market position approaching that of a monopoly can normally not be justified on the grounds that it also creates efficiency gains.

Exclusive dealing (ED): FTC

• Early important decisions involving exclusive dealing arrangements:– Standard Fashion Co. v. Magrane-Houston Co. [258 U.S. 346

(1922)]– Standard Oil Co. of California v. U.S. [337 US 293 (1949)]– U.S. v. United Shoe Machinery Corporation [347 U.S. 521

(1954)].

• Recent cases:– Scholler v. Commission, European Court Case T-9/95, U.S. v.

Microsoft (1995 Consent Decree)– U.S. v. Dentsply [399 F.3d 181 (2001)]– Conwood v. United States Tobacco [290 F.3d 768 (2002)]– U.S. v. Visa USA [344 F.3d 229 (2003)].

Exclusive dealing (ED)

• Um dos argumentos pró é o de que facilitaria investimento. – “protecting the relation-specic investment of the

exclusive-right holder against opportunistic hold-up (think for instance of a manufacturer that invests in order to improve the services of a common retailer, thereby failing to entirely appropriate the benets of its investment).”

• O argumento contra é que barra competidor mais eficiente (foreclosure)

• Fumagalli, Motta and Ronde (2009): esses dois efeitos estão ligados e não devem ser somados.

USA X Europe

• “Currently, under US case-law the procompetitive rationale of exclusive contracts seems to prevail: it is very infrequent that firms endowed with monopoly power are found to have infringed the Sherman Act due to the use of exclusive clauses.

• On the contrary, in Europe it is the exclusionary effects of exclusive deals which are emphasised: in the EU exclusive contracts by dominant firms are ruled out by a de facto per se prohibition rule, and efficiency effects are usually not even considered in competition policy cases.”

Mudanças recentes => convergência

• Both in the US and in the EU the policy towards monopolization or abusive practices is being reconsidered!

• U.S. Courts take the anti-competitive effects of exclusive dealing more seriously in several recent cases.

• The European Commission has recently signalled its intention to move towards a rule of reason approach. See the recent Guidance on the Commission's Enforcement Priorities in Applying Article 82 EC Treaty to Abusive Exclusionary Conduct by Dominant Undertakings, December 2008.

Fumagalli, Motta and Ronde (2009)

• “In our setting, absent any effect of ED on investment, an exclusive contract which leads to inefficient foreclosure would not be signed in equilibrium (in other words, the Chicago School critique applies). The reason is that the contract, if signed, benefits the incumbent but causes a loss to the buyer. Since the lowest compensation that the buyer requires to sign is larger than the incumbent's gain, it follows that the incumbent could never elicit the buyer's acceptance in a profitable way. Instead, when one takes into account investment promotion, it turns out that an exclusive contract which leads to inefficient foreclosure is signed. The reason is that investment promotion, by increasing the value of trade between the incumbent and the buyer, mitigates the buyer's loss due to exclusivity and expands the incumbent's gain. If this effect is sufficiently strong, the buyer and the incumbent have a private incentive to agree on exclusivity. However, investment promotion may be too weak to make the incumbent more efficient than the rival supplier and the decision to agree on exclusivity, by foreclosing the more efficient producer, may be welfare detrimental.

• We also show that considering the risk of foreclosure and investment promotion in isolation, disregarding their interaction, does not provide a correct measure of the net effect of ED on welfare.”

ED

• Exclusive purchasing requirements

• Rebates– Retroactive – Incremental

• Exclusive stocking requirements

Tying and Bundling

• “Tying” usually refers to situations where customers that purchase one product (the tying product) are required also to purchase another product from the dominant undertaking (the tied product). Tying can take place on a technical or contractual basis.

• “Bundling” usually refers to the way products are offered and priced by the dominant undertaking. In the case of pure bundling the products are only sold jointly in fixed proportions. In the case of mixed bundling, often referred to as a multiproduct rebate, the products are also made available separately, but the sum of the prices when sold separately is higher than the bundled price.

Diferenças: Tying X Bundling

• "[t]he key difference between tying and bundling is that tying involves the conditioning of the sale of one product on the purchase of the other." United States v. Eastman Kodak Co. (1994).

• Indeed, the Supreme Court has stated that the "common core" of unlawful tying arrangements "is the forced purchase of a second distinct commodity." Times-Picayune Publ Co. v. United States (1953)

http://www.metrocorpcounsel.com

• Editor: What is the difference between "tying" and "bundling?"

• Weinschel: Bundling is not tying because forcing is absent. In "bundling" there are two or more products and there are inducements to take the whole bundle, or more than one product. The inducement is usually a discount that only applies when multiple products are purchased. The two products are available separately so there is no compulsion to buy product B along with product A. Bundling law has evolved differently from tying law even though some economists look at the two in a similar fashion.

• Editor: In what circumstances would bundling be illegal?

• Weinschel: These are hard cases because they deal with the difference between "hard competition" and "exclusion." Violations have been found where there is significant market power in one of the products in the bundle and competition is prevented (not just made difficult) with respect to one or more other products. An example is SmithKline Corp. v. Eli Lilly & Co., 575 F.2d 1056 (3rd Cir. 1978). Lilly had two leading antibiotics that were patented and unique. Lilly also sold hospitals other antibiotics for which there were substitutes. Lilly offered a discounted bundle that included the two unique Lilly antibiotics and other Lilly antibiotics. There were very strong economic incentives to take the bundle and earn the discounts. SmithKline, which sold a competing antibiotic, argued that the discount structure penalized hospitals for dealing with SmithKline and showed that it could not remain profitable in the long run in products that competed with the bundled product. The Third Circuit held that Lilly violated Section 2 of the Sherman Act in attempting to extend and entrenching its monopoly in antibiotics.

• Another case that comes to mind, also from the Third Circuit, is the more recent LePage's Inc. v. 3M , 324 F.2d 141 (3rd Cir. 2003). There, 3M, with admitted monopoly power in the brand name market, was faced with competition by LePage's, a seller of private label tape. 3M offered discounts to customers buying a broad bundle of its products. LePage's lost significant sales to 3M and won a jury verdict. The majority seemed comfortable that the evidence in the record was enough to support a verdict that 3M had gone too far even though there was no allegation that 3M sold below cost. The majority seemed troubled by the fact that 3M tailored its discounts to target LePage's major customers. Analytically, this shouldn't be determinative, but it is one of those facts that could lead to a conclusion that a company had gone too far and had acted in an "exclusionary" manner. The dissent (including now- Justice Alito) was not so comfortable, because of the absence of proof that 3M sold below cost or that LePage's was unable to meet 3M's competition.

• Editor: What are some of the characteristics of the cases where bundling has not been found illegal?

• Weinschel: A leading case cited for the proposition that bundling is legal if competition can still occur is Ortho Diagnostic Sys., Inc. v. Abbott Labs, Inc., 920 F.Supp. 455 (S.D.N.Y. 1996). Judge Kaplan concluded in a scholarly opinion that a bundle did not violate the Sherman Act in the absence of pricing that prevented sales by an equally efficient competitor and in the absence of proof that there was no viable economic alternative to the bundle for purchasers.

• Another case that came to a similar conclusion was Virgin Atlantic Airways Ltd. v. British Airways PLC , 257 F.2d 256 (3rd Cir. 2001). Virgin sued British Airways for offering volume discounts to travel agents and some corporate customers. Some were on specific routes where BA faced competition from Virgin. Virgin alleged that BA lowered the prices on the competitive routes and allegedly subsidized those lower prices with monopoly profits on the noncompetitive routes. The court threw out the case distinguishing SmithKline because there was no proof that British Airways' pricing was below cost or that consumers were harmed. The Second Circuit also followed Supreme Court precedent and rejected the theory of "monopoly leverage" - gaining an advantage in one market through a dominant position in another - as a cause of action under the Sherman Act. See Spectrum Sports, Inc., v. McQuillan , 506 U.S. 447 (1993); see also, Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, 540 U.S, 398 (2004).

Programas de fidelidade• Editor: What about loyalty discounts? • Weinschel: Loyalty discounts are inducements to customers to buy more and thereby earn a

lower price. Even if the seller has a substantial market share, and even if the discounts are below cost, it must be shown that the net effect of the discount program is to exclude competition and that the seller would be able to recoup its losses through monopoly pricing after all competition has been eliminated. It is a very difficult case for the plaintiff. The antitrust laws are designed to encourage sellers to lower prices and take sales away from competitors

• An example here is Concord Boat Corp. v. Brunswick Corp., 207 F.2d 1039 (8th Cir. 2000). This case is often discussed as a bundling case but in reality it is about loyalty or market share discounts. Brunswick sold marine engines. Plaintiffs were boat manufacturer-customers of Brunswick. Brunswick offered market share discounts of 3% to boat builders and dealers buying 70 percent of their engine requirements from Brunswick, as well as other inducements to increase purchases. The evidence was that Brunswick did not sell below cost. There was also a failure of proof that the programs themselves compelled customers to buy from Brunswick. There was also testimony on the difficulty other engine manufacturers faced in the marketplace and a general lack of evidentiary connection between the discounts and rivals' lost sales. Given these circumstances, there was no antitrust violation.

• Editor: I understand that the EC treaty bans loyalty discounts. • Weinschel: The EC takes a different approach. The EC has taken the position that a dominant

seller that gains a competitive edge by using loyalty discounts or bundled discounts can thereby "abuse" its dominant position. The EC believes it is necessary to protect smaller competitors (even if they are less efficient) in order to protect the competitive process. It is similar to the offense of "monopoly leveraging," which has been rejected here. The EC appear to equate harm to a competitor as equal to harm to competition. This is quite inconsistent with U.S, antitrust principles.

Predation

• Sacrifice!• Harder to argue efficiency gains...

• “Equally efficient producer” argument

• It may be easier for the dominant undertaking to engage in predatory conduct if it selectively targets specific customers with low prices, as this will limit the losses incurred by the dominant undertaking.

• It is less likely that the dominant undertaking engages in predatory conduct if the conduct concerns a low price applied generally for a long period of time.

Refusal to deal and margin squeeze

• Vertical integrated entity...

• the refusal relates to a product or service that is objectively necessary to be able to compete effectively on a downstream market;

• the refusal is likely to lead to the elimination of effective competition on the downstream market; and

• the refusal is likely to lead to consumer harm.