EUR-Charts

The following entry should read:

…

PART ONE: EU COMPETITION LAW

I. Charts: EU Competition Law (Arts. 101 – 109 TFEU) [C-Charts]

…

The following entry should read:

[…]

PART ONE: EU COMPETITION LAW                                                           13

I. Charts: EU Competition Law (Arts. 101 – 109 TFEU) [C-Charts]               13

[…]

2.1.1 Art. 101(1) TFEU
Undertakings’ conduct under Art. 101(1) TFEU      C8 25
Effect on trade between the Member States      C9 26
Appreciability of the effect on trade      C10 27
Object or effect in relation to competition      C11 28
The de minimis rule regarding effect on competition      C12 29
Restrictions of competition “by object”      C13 30
Result: two distinct issues of appreciability      C14 31
Examples mentioned in Art. 101(1) TFEU      C15 32

[…]

 

Add the following entry:

[…]

PART ONE: EU COMPETITION LAW                                                           13

I. Charts: EU Competition Law (Arts. 101 – 109 TFEU) [C-Charts]               13

[…]

5. Private enforcement

Private enforcement      C56 72a

[…]

 

Add the following entries:

SGEI          Services of general economic interest

SGI          Services of general interest

SIEC          Significant Impediment for Effective Competition
 

The following entry, previously called “Hardcore restrictions”, should read:

[…]

Restrictions of competition “by object”                                                                          C13 30
Where a conduct is characterised as a _ restriction of competition “by object”, it will not be exempt under the de minimis rule even if the undertakings concerned do not reach the relevant thresholds.

[…]

 

Add the following entry:

[…]

5    Private enforcement

Private enforcement            C56     72a

Private enforcement of EU competition law means legal action brought by a private party, under national law and before a national court, including, in particular, actions for damages and for injunctive relief. Private enforcement may relate to EU competition law on undertakings as well as on state aid.

 

The box in the 5th row, on “Functional link with free movement” must read:

Functional link with free movement

EU competition law and EU law on free movement are functionally linked:
• For EU competition law to apply, the conduct in question must have a (potential) effect on trade between Member States (so-called “inter-state” or “internal market element”; see Chart C7, Chart C29, Chart C49).
• EU competition law and free movement law can apply simultaneously; e.g. Essent Netwerk (2008), Presidente del Consiglio (2009), Murphy (2011).

The box in the 4th row, on “Procedure”, on the left hand side, must read:

Procedure

• Regulation 1/2003/EC (formerly: “Regulation 17” of 1962);
• Regulation 773/2004/EC;
• Commission Notice on best practices (2011).

See Chart C33 et seq.

The box in the second last row, on “Legal basis provisions for secondary law in the field of competition”, must read:

Legal basis provisions for secondary law in the field of competition

• Art. 103 TFEU, regarding Arts. 101 and 102 TFEU;
• Art. 106(3) TFEU, regarding Art. 106(1) and (2) TFEU;
• Art. 109 TFEU, regarding Arts. 107 and 108 TFEU;
• Legal basis provisions for specific areas; e.g. Arts. 42 and 43 TFEU (agriculture);
• The general legal basis provisions of Arts. 114 and 115 TFEU: for other issues (e.g. Merger Regulation 139/2004/EC).

The 2nd box must read:

Importance of the definition of the relevant market

• For the purposes of Art. 102 TFEU, the proper definition of the relevant market is a necessary precondition for any judgment as to allegedly anti-competitive behaviour; Volkswagen (2000); see Chart C30;
• In other contexts (e.g. Art. 101 TFEU, merger control under Regulation 139/2004/EC and sectoral competition law), it may be an important element, e.g. in relation to the effect on trade between Member States and on competition, and in relation to product_turnover and market shares; Heubach (2005).

Due to the fact that the Commission Guidelines on horizontal co-operation agreements were published in the Official Journal in 2011, the text in the box entitled “Horizontal agreements” must read:

Horizontal agreements

Agreements between companies operating at the same level(s) in the market, i.e. actual or potential competitors; e.g. between wholesalers; Commission Guidelines on horizontal co-operation agreements (2011)

Add a new box at the very end (bottom) of the chart:

Practical consequences

In the case of market shares and turnover below the thresholds, the Commission will not institute proceedings.

The text in the box in the 3rd row, on the right hand side, on “Appreciability: the “de minimis rule“”, must read:

Appreciability: the “de minimis rule“

The actual prevention, restriction or distortion must be
appreciable; Völk (1969).
• Since 1970, guidance through Commission notices;
• At present: Commission Notice on agreements of minor
importance (2014), so-called “De Minimis Notice”.

See Chart C12

Add a new box at the very end (bottom) of the chart:

Note:
There is no need to take account of the concrete effects of an agreement once it appears that it has as its object the prevention, restriction or distortion of competition. An agreement that may affect trade between Member States and that has an anti-competitive object constitutes, by its nature and independently of any concrete effect that it may have, an appreciable restriction on competition; Expedia (2012).

The text in the 2nd row must read:

Guidance from the Commission through the Commission Notice on agreements of minor importance (2014):
Art. 101(1) TFEU does not apply where certain market share thresholds are not exceeded and where the agreements do not have as their object to restrict competition (e.g. agreements containing hardcore restrictions).

Thresholds:

The text in the box entitled “Vertical agreements” (3rd row, on the right hand side) must read:

Vertical agreements: ≤15%

I.e. agreements between non-competitors; see Chart C8

Threshold of 15% _ market share in any of the relevant markets affected by the agreement.

The text in the last row, on “Practical consequence”, must read:

Practical consequence

In the case of undertakings with market shares below the relevant thresholds, the Commission will not institute proceedings (see Chart C35), unless the agreement has as its object to restrict competition; see Chart C13.

Add a new box at the very end (bottom) of the chart:

Notes:

•     Being part of the EU’s soft-law (see Chart B10), Commission Notices and Guidelines in the field of competition are not binding on the Member States; Pfleiderer (2011).

•     Accordingly, the De Minimis Notice is not binding on the Member States, including the national competition authorities and the national courts. However, by this notice, the Commission imposes a limit on the exercise of its discretion in the application of Art. 101(1) TFEU; Expedia (2012).

New terminology by the Commission requires this Chart to be amended at several points:

The Chart’s title must (newly) read:

Restrictions of competition “by object”

The topic sentence must read:

Where a conduct is characterised as a _ restriction of competition “by object”, it will not be exempt under the de minimis rule even if the undertakings concerned do not reach the relevant thresholds.

The box in the 2nd row must read:

Commission Notice on agreements of minor importance (2014):
The de minimis rule does not apply where an agreement contains _ restrictions of competition “by object”.

The box in the 3rd row must read:

_ Restrictions “by object”:
Distinction between relevant clauses according to the type of agreement

The box in the 6th row, on the left hand side, relating to vertical agreements, must read:

• Price fixing;
• Market sharing;
• Limitation of output or sales;
• Bid rigging;
• Collective boycotts;
• Information sharing;
• Restrictions on carrying out R&D or using own technology.

The box in the 6th row, on the right hand side, relating to vertical agreements, must read:

• Sales restrictions on buyers;
• Sales restrictions on licensees;
• Sales restrictions on the supplier;
• Resale price maintenance.

The text in the box in the very last row, entitled “Note”, must read:

Notes:

• The previous De Minimis Notice (2001) used the term “hardcore restrictions”.
• Hardcore restrictions are also relevant in the context of block exemptions, ; see Chart C17.

The box in the 3rd row at the right hand side must read:

Commission Notice on agreements of minor importance (2014)

The box in the 6th row on the right hand side must read:

See Chart C12, Chart C13

The text in the box entitled “Block exemption regulations (BERs)” must read:

Block exemption regulations (BERs)

• Vertical restraints: Regulation 330/2010/EU, with Commission Guidelines on Vertical Restraints (2010); see Chart C18;

• Specialisation agreements: Regulation 1218/2010/EU, with Commission Guidelines on horizontal co-operation agreements (2011); see Chart C19;

• Research and development: Regulation 1217/2010/EU, with Commission Guidelines on horizontal co-operation agreements (2011); see Chart C20;

• Technology transfer: Regulation 316/2014/EU, with Commission Guidelines on technology transfer agreements (2014); see Chart C21;

• Motor vehicle distribution: Regulation 461/2010/EU, with Commission Guidelines on Vertical Restraints (2010) and Supplementary Guidelines on motor vehicles (2010);

• Insurance: Regulation 267/2010/EU, with a Commission Communication on the insurance sector (2010);

• Liner shipping: Regulation 906/2009/EC.

 

Note:
The exemptions for consultations on air passenger tariffs and slot allocation were phased out by Regulation 1459/2006.

The very last box (at the bottom) must read:

Notes:
• There is also a block exemption in the field of state aid; see Chart C52.
• Undertakings with a special position under national law may be able to rely on Art. 106(2) TFEU; see Chart C45.

The box in the 3rd row, entitled “Terms of the Regulation, Arts. 2-8” must read:

Terms of the Regulation, Arts. 2-8

In principle, all arrangements that do not constitute hardcore restrictions or excluded restrictions are allowed, if the _ market shares of both the supplier and _ the buyer in their respective relevant markets are ≤30% (in the case of a subsequent rise, the exemption continues to apply for a limited period of time).

To the following types of agreements further conditions apply, Art. 2(2)-(4):
• Agreements between an association and its members, or an association and its suppliers;
• Non-reciprocal agreements between competing undertakings;
• Agreements relating to the assignment to, or the use by, the buyer of intellectual property rights provided that those provisions do not constitute the primary object of such agreements and are directly related to the use, sale or resale of the contract goods or services (primary object: see Chart C21).

The box in the 1st row must read:

Block exemption: categories of technology transfer agreements, Regulation 316/2014/EU

The box in the 2nd row, entitled “Technology transfer agreement”, Art. 1(1)(b)”, must read:

“Technology transfer agreement”, Art. 1(1)(c)

• A technology rights licensing agreement entered into between two undertakings;
• An assignment of technology rights between two undertakings;
as further defined in Art. 1(1)(c).

 

The box in the 3rd row, entitled “Terms of the Regulation, Arts. 3-5 and 8” must read:

Terms of the Regulation, Arts. 3-5 and 8

In principle, all arrangements that do not contain hardcore restrictions or excluded restrictions are allowed, if:
• Where the parties are (potential) competitors, the combined market share of the parties is ≤20% on the relevant technology and product market;
• Where the parties are not competitors, the individual market share of each of the parties is ≤30% on the relevant technology and product markets.
In the case of a subsequent rise, the exemption continues to apply for a limited period of time.

For the definition of the technology market, see the Commission Guidelines on technology transfer agreements (2014).

The box in the 4th row, on the left hand side, entitled “Allowed restrictions” must read:

Allowed restrictions

E.g.:
•   Where the parties are competing undertakings:

–  Obligation on the licensor and/or the licensee not to produce with the licensed technology rights within the exclusive territory and/or not to sell actively and/or passively into the exclusive territory or to the exclusive customer group reserved for the other party, Art. 4(1)(c)(i);
–  Obligation on the licensor to produce the contract products only for its own use provided that the licensee is not restricted in selling the contract products actively and passively as spare parts for its own products, Art. 4(1)(c)(iii);
_

•   Where the parties are not competing undertakings: obligation not to passively sell the products into an exclusive territory or to a customer group reserved for the other party or to the exclusive customer group reserved for the licensee, Art. 4(2)(b)(i).

Due to the fact that the Commission Guidelines on horizontal co-operation agreements were published in the Official Journal in 2011, the text in the box entitled “Licence” must read:

Licence

• Agreements containing clauses related to licensing may fall foul under Art. 101(1) TFEU. Block exemptions may apply; if licensing is the primary object of the agreement, see Chart C21; for franchise agreements, see Chart C24.

• Inclusion of an IPR in a standard: licensing must be based on fair, reasonable and non-discriminatory terms (FRAND commitment); Commission Guidelines on horizontal co-operation agreements (2011).

The box in the 6th row in the middle must read:

Competition element

See Chart C32

Insert a new last box at the very bottom which reads:

Note:
Undertakings with a special position under national law may be able to rely on Art. 106(2) TFEU; see Chart C45.

The box in the 6th row, entitled “Second generation of secondary legislation on enforcement: The European Competition Network”, must read:

Second generation of secondary legislation on enforcement:
The European Competition Network

Regulation 1/2003/EC (in force since 1 May 2004):
• Chapter IV: close cooperation between the Commission and the NCAs, which together make up the European Competition Network; see Commission Notice on cooperation with the Network of
Competition Authorities (2004);
• Arts. 5 and 6: NCAs and national courts have the power to apply Art. 101 TFEU in full as well as Art. 102 TFEU; for a practical example, see Pierre Fabre (2011).

Add a new box at the very bottom of the chart:

With regard to private enforcement, see Chart C56

The box in the 2nd row, entitled “Generally: a system of parallel competences”, must read:

Generally: a system of parallel competences

• Arts. 4, 5 and 6 of Regulation 1/2003/EC: the NCAs, the national courts and the Commission share the competence to apply Arts. 101 and 102 TFEU (note: regarding Art. 5, only the Commission and not the NCA is empowered to make a finding that there has been no breach of Article 102 TFEU, even if that provision is applied in a procedure undertaken by an NCA; Tele2 Polska (2011)).;
• Any person or firm affected by anti-competitive behaviour may bring the matter before the national courts and seek damages (private enforcement); e.g. Pfleiderer (2011); see Chart B17.

The box in the 3rd row, entitled “Specifically: shared competence between the NCAs and the Commission, until the Commission takes the case”, must read:

Specifically: shared competence between the NCAs and the Commission, until the Commission takes the case

• Art. 11(1) of Regulation 1/2003/EC: the Commission and the NCAs apply the EU competition rules in close cooperation;
• Art. 11(6) of Regulation 1/2003/EC: proceedings by the Commission under Chapter III of the Regulation relieve the NCAs of their competence. For effect prior to accession: Toshiba (2012).

The box in the 4th row, on the right hand side, must read:

Information by the undertaking to the Commission, in order to obtain a certain (beneficial) reaction from the Commission, namely:

• Finding of inapplicability of Art. 101 TFEU (formal decision), Art. 10 of Regulation 1/2003/EC;
• Informal guidance letter; recital 38 in the preamble to Regulation 1/2003/EC, Commission Notice on guidance letters (2004);
• Immunity from fines (provided cooperation by the undertaking was full, continuous and expeditous; Deltafina (2011)).

The box in the 4th row must read:

Obligation of the undertakings to cooperate

In principle, the undertakings must cooperate with the Commission. In certain circumstances, undertakings may withhold information:
• Self-incrimination:
No obligation of undertakings to admit infringements, though factual questions must be answered; recital 23 in the preamble to Regulation 1/2003/EC; Orkem (1989), Solvay (1989), Société Générale (1995).
• Legal professional privilege (attorney – client):
No obligation of an undertaking to disclose confidential communications with its external counsel; AM & S (1982). No such privilege for in-house counsel; AKZO Nobel (2010);
• Protection of business premises:
Art. 8 ECHR (protection of the home) may in certain circumstances cover business premises. The Commission’s measures must not be arbitrary or disproportionate; Roquettes Frères (2002);
• Breach of seal during an inspection:
In the case of a breach of a seal, the undertaking must prove that the seal was neither wilfully nor negligently broken; E.ON (2012).

The box in the 3rd row, on the left hand side, entitled “Hearing”, must read:

Hearing

Art. 27 of Regulation 1/2003/EC, Arts. 11-14 of Regulation 773/2004/EC

• Upon the request of a party in the written reply to the statement of objection or of a third party that can show sufficient interest;
• Conducted by the hearing officer who ensures respect for the rights of defence, Decision 2011/695/EU.

The box in the 2nd last row, entitled “Possibility of judicial review”, must read:

Possibility of judicial review

• Action for annulment to the General Court under Art. 263 TFEU; see Chart B18.
• Appeal on points of law to the Court of Justice; see Chart B20.

Note: The judicial review provided is compatible with the requirements of the principle of effective judicial protection by EU Courts as required by Art. 6 ECHR and the Charter of Fundamental Rights; KME (2011), which in fact is a follow-up case on the ECHR case Menarini (2011).

The box in the 4th row, on the right hand side, entitled “Penalties”, must read:

Penalties

Imposition of financial penalties is possible, Arts. 23 et seq. of Regulation 1/2003/EC:
• Fines;
• Period penalty payments.

Commission Guidelines on the method of setting fines (2006) mentions mitigating and aggravating circumstances; e.g. Intel (2014), involving the highest fine imposed so far.

Ne bis in idem, Art. 6 ECHR:
• The Commission must take account of fines imposed for the same conduct under the national law of a Member State; Boehringer Mannheim (1972), SGL Carbon (2007).
• However, this does not apply in relation to fines imposed for the same conduct under the national law of a third country; SGL Carbon (2007).

The box in the 2nd row, entitled “Test”, must read:

Test

Art. 2 of Regulation 139/2004, Commission Guidelines on the assessment of horizontal mergers (2004) and Commission Guidelines on the assessment of non-horizontal mergers (2008):
Would the concentration lead to a Significant Impediment for Effective Competition in the internal market or in a substantial part of it, in particular through the strengthening or the creation of a dominant position?
(SIEC test)

The box entitled “… acceptable under certain conditions, Art. 8(2)” (at the bottom, in the middle) should read:

… acceptable under certain conditions,
Art. 8(2)

The concentration is declared compatible with the internal market under certain conditions. The undertakings enter into commitments vis-à-vis the Commission (“remedies”); Commission Notice on remedies (2008).
E.g. Commission Decision Exxon/Mobil (1999), decided under Regulation 4064/89/EEC; Commission Decision Hutchison 3G Austria/Orange Austria (2012)

The box entitled “… not acceptable, Art. 8(3)” (at the bottom, on the left hand side) should read:

… not acceptable, Art. 8(3)

The concentration is declared incompatible with the internal market.
E.g. Commission Decision General Electric/Honeywell (2004), General Electric (2005), Honeywell (2005); decided under Regulation 4064/89/ EEC; Commission Decision Ryan Air/Air Lingus (2013)

The box in the first row, entitled “ The concept of “services of general economic interest” ”, must read:

The concept of “services of general economic interest” (SGEI)

The box in the second last row on the right hand side, entitled “Art. 107 TFEU State aid”, must read:

Art. 107 TFEU
State aid

Altmark (2003), Olsen (2005), UFEX (2006)

See Chart C53

 

The last box, entitled “Notes”, must read:

Notes:
• Services of general economic interest (SGEI) must be distinguished from services of general interest (SGI); see in
particular Commission Communication on SGIs (2001), Green Paper on SGIs (2003), White Paper on SGIs (2004) and Guide to the application of the EU rules on state aid, public procurement and the internal market to SGEI, and in particular to social SGI (2013).
• Following the Lisbon revision, there is a Protocol No 26 on services of general interest.
• Art. 107(1) TFEU does not cover aid granted to undertakings providing services of general economic interest which has an insignificant effect on competition (de minimis); Regulation 360/2012 EU.

The box in the 5th row, entitled “Consequence”, must read:

Consequence

Conduct meeting the above conditions is contrary to EU law (“incompatible with the internal market”, Art. 107(1) TFEU) …
… unless a derogation under Art. 107(2) or (3) TFEU or under Art. 93 TFEU applies (see Chart C52) or the case falls under Art. 106(2) TFEU (see Chart C45).

The very last box (at the bottom) must read:

Notes:

• Even though Art. 107(1) TFEU does not use the term “prohibition”, the ECJ in fact treats it as such; e.g. Commission v France (1969), Holland Malt (2009).

• The Commission has published a number of Guidelines on the application of Art. 107 TFEU in certain, specific contexts; e.g.:

• Guidelines on State aid for rescuing and restructuring firms in difficulty (2004) (there are new Draft Guidelines on state aid for rescuing and restructuring non-financial undertakings in difficulty);
• Guidelines on state aid to promote risk finance investments (2014);
• Guidelines on environmental and energy state aid 2014-2020.

The box in the 3rd row, in the middle, entitled “By the State:” must read:

By the State:
• The advantage must be attributable to an EU Member state (rather than e.g. to the EU).
• Can be directly or indirectly, i.e. through public or private bodies established or appointed by the State in order to administer the aid; Kwekerij Gebroeders van der Kooy (1988).

The box in the 3rd row, to the right hand side, must read:

There must be an advantage for “certain undertakings or the production of certain goods” in comparison with other undertakings that are in a comparable legal and factual situation; e.g. Commission v Italy (1974), Azores (2006), Gibraltar (2011).

The box in the 4th row, to the left hand side, entitled “The market economy investor principle”, must read:

The market economy investor principle

There is no state aid if the State action takes place under normal market conditions and terms.

• Test: Would a private investor act likewise, i.e. is the behaviour commercially justified?
• Test first established in Leeuwaarder Papierfabriek (1985), more recently e.g. EDF (2012).

The box in the 5th row, to the left hand side, entitled “Determination of the market value of assets”, must read:

Determination of the market value of assets

• Public auction/procurement: assumption in favour of the highest/lowest price respectively;
• Valuation of assets by an independent appraiser.

_ E.g. in the context of shares: Commission Decision IBZH (2001), Commission Decision UNIPETROL (2004).

In the 4th row, the box entitled “De minimis rule for state aid”, should read:

De minimis rule for state aid

• General de minimis Regulation 1407/2013 (technically speaking, the de minimis Regulation for state aid is a block exemption based on Regulation 994/98);
• There are also a number of specific de minimis Regulations; e.g. Regulation 360/2012 (SGEI; see Chart C46); Regulation 1408/2013 (agriculture).

E.g. Art. 3 of Regulation 1407/2013:

In the 5th row, on the left hand side, the box entitled “Generally”, should read:

Generally

Aid of ≤ EUR 200,000 over a period of 3 fiscal years is exempted.

In the 5th row, on the right hand side, the box entitled “Specifically for the road transport sector”, should read:

Specifically for the road transport sector

Aid of ≤ EUR 100,000 over a period of 3 fiscal years is exempted.

In the last box entitled “Temporary framework in the economic crisis”, the following should be added:

Temporary framework in the economic crisis

The Commission Communication: Temporary Union framework for State aid measures to support access to finance in the current financial and economic crisis (2011) expired on 31 December 2011:

Based on Art. 107(3)(b) TFEU, the Commission _ considered temporary state aid acceptable if it did not exceed a cash grant of EUR 500,000 per undertaking and if it fulfilled certain further criteria.

Commission Communication on the application, from 1 August 2013, of State aid rules to support measures in favour of banks in the context of the financial crisis (2013): The Commission extends the crisis rules for banks.

In the 4th row, in the middle, the box should read:

Clarification of Art. 107(3) TFEU through General Block Exemption Regulation 651/2014/EU, adopted on the basis of Regulation 994/98/EC

(Formerly: Regulation_ 800/2008/EC)

In the 5th row, on the left hand side, the box entitled “Generally”, should read:

Generally

Aid of ≤ EUR 200,000 over a period of 3 fiscal years is exempted.

In the 5th row, on the right hand side, the box entitled “Specifically for the road transport sector”, should read:

Specifically for the road transport sector

Aid of ≤ EUR 100,000 over a period of 3 fiscal years is exempted.

In the last box entitled “Temporary framework in the economic crisis”, the following should be added:

Temporary framework in the economic crisis

The Commission Communication: Temporary Union framework for State aid measures to support access to finance in the current financial and economic crisis (2011) expired on 31 December 2011:

Based on Art. 107(3)(b) TFEU, the Commission _ considered temporary state aid acceptable if it did not exceed a cash grant of EUR 500,000 per undertaking and if it fulfilled certain further criteria.

Commission Communication on the application, from 1 August 2013, of State aid rules to support measures in favour of banks in the context of the financial crisis (2013): The Commission extends the crisis rules for banks.

There are new measures on State aid in the form of public service compensation. Accordingly, the last box, entitled “Follow up on Altmark (2003)” must read:

Follow up on Altmark (2003)

• For certain types of public service obligations that do not meet the Altmark conditions: Commission Decision 2012/21/EU on State aid in the form of public service compensation (Art. 107(1) TFEU applies but there is an exemption under Art. 106(2) TFEU; no notification is required) (replaces Decision 2005/842/EC); see also Commission Communication: European Union framework for State aid in the form of public service compensation (2011) and Commission Communication on the application of the European Union State aid rules to compensation granted for the provision of SGEI (2012) and Regulation 360/2012/EU (regarding SGEI; see Chart C46);
• For other cases, with the exception of transport and broadcasting: Commission framework for State aid in the form of public service compensation (2011) (notification is required);
• Transport: in particular Regulation 1370/2007/EC (see Chart C52); broadcasting: Commission Communication on the application of State aid rules to public service broadcasting (2009).

The box in the 3rd row, on the right hand side, entitled “New aid, Art. 108(3) TFEU” must read:

New aid, Art. 108(3) TFEU

Prior notification to the Commission and examination by the Commission; e.g. Lufthansa (2013)

The box in the 5th row, on the right hand side, entitled “Effect of notification” must read:

Effect of notification

• The aid cannot be granted before being approved by the Commission.
• Recovery of unlawful aid: non-notified aid is unlawful and in principle must be paid back; e.g. Deufil (1978), CELF (2008, 2010).
• Following notification, there is a stand-still obligation on the Member States which is enforced by the national courts.

Remove the arrow (dotted line) which links the box in the 5th row, on the right hand side, entitled ” “Incompatible aid”, Art. 7(5) “, to the box in the 6th row, on the right hand side, starting with “Exceptionally, the Council (of Ministers) may […]”.

The box in the 6th row, on the right hand side, starting with “Exceptionally, the Council (of Ministers) may […]” must read:

Art. 108(2) TFEU: in exceptional circumstances, the Council (of Ministers) may decide that aid is to be considered compatible with the internal market in derogation from Art. 107 TFEU or from regulations adopted under Art. 109 TFEU; e.g. in the economic crisis; Commission v Council (2013).

Add a box at the very end (bottom) of the Chart:

With regard to private enforcement, see Chart C56

There is an additional Chart on the Private enforcement of EU competition law available: Chart 56 Private enforcement

The following entries must read:

• Treaty establishing the European Coal and Steel Community, signed in 1951 (English translation: 261 U.N.T.S. 143), not published in the OJ, see: http://eur-lex.europa.eu/en/treaties/index.htm (expired 23 July 2002; “Paris Treaty”)

• Treaty establishing the European Atomic Energy Community, signed in 1957 (English translation: 298 U.N.T.S. 169), not published in the OJ in its original version, see: http://www.eur-lex.europa.eu/en/treaties/treaties_founding.htm (as amended; “Rome Treaty”), most recent codified version: OJ 2012 C 327

• Treaty establishing the European Economic Community (English translation: 298 U.N.T.S. 11), signed in 1957, not published in the OJ in its original version, see: http://eur-lex.europa.eu/en/treaties/index.htm (as amended; “Rome Treaty”); later renamed “Treaty Establishing the European Community”, since 1 December 2010 “Treaty on the Functioning of the European Union”), most recent codified version: OJ 2012 C 326/47

• Treaty establishing a single Council and a single Commission of the European Communities (English translation: 1348 U.N.T.S. 81), signed in 1965, OJ 1967 L 152/2 (“Merger Treaty”)

• Act concerning the election of the representatives of the Assembly by direct universal suffrage, signed in 1976, attached to Council Decision 76/787/ECSC, EEC, Euratom, OJ 1976 L 278/1

• Single European Act, signed in 1986, OJ 1987 L 169/1

• Treaty on European Union, signed in 1992, OJ 1992 C 191/1, most recent codified version: OJ 2012 C 326/13

• Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and related acts, signed in 1997, OJ 1997 C 340/1 (“Amsterdam Treaty”)

• Treaty of Nice amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts, signed in 2001, OJ 2001 C 80/1 (“Nice Treaty”; consolidated versions: OJ 2002 C 325/01)

• Treaty establishing a Constitution for Europe, signed in 2004, OJ 2004 C 310/1 (not entered into force; ”Constitutional Treaty”)

• Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed in 2007, OJ 2007 C 306/1 (“Lisbon Treaty”, consolidated versions: OJ 2008 C 115/1, OJ 2010 C 83/1, OJ 2012 C 326 and 327)

• Charter of Fundamental Rights of the European Union (including explanations relating to the interpretation of the Charter), OJ 2012 C 326/391 (originally: OJ 2000 C 364/01, subsequently reenacted: OJ 2007 C 303/1)

• Protocol on protection and welfare of animals, OJ 1997 C 340/110

• Protocol (No 2) (annexed to the Lisbon Treaty) amending the Treaty establishing the European Atomic Energy Community, OJ 2007 C 306/199

• Protocol (No 3) on the Statute of the Court of Justice, OJ 2012 C 326/210

• Protocol (No 26) on services of general interest, OJ 2012 C 326/308

• Protocol (No 27) on the internal market and competition, OJ 2012 C 326/309

Delete the following:

• Regulation 68/2001/EC on the application of Articles 87 and 88 of the EC Treaty to training aid, OJ 2001 L 10/20 (as amended; no longer in force)	C52
• Regulation 70/2001/EC on the application of Articles 87 and 88 of the EC Treaty to State aid to small and medium-sized enterprises, OJ 2001 L 10/33 (as amended; no longer in force)	C52
• Regulation 2204/2002/EC on the application of Articles 87 and 88 of the EC Treaty to State aid for employment, OJ 2002 L 337/3 (as amended; no longer in force)	C52
•  Regulation 772/2004/EC on the application of Article 81(3) of the Treaty to categories of technology transfer agreements, OJ 2004 L 123/11 (as corrected)	C16, C21
• Regulation 1628/2006 on national regional investment on the application of Articles 87 and 88 of the Treaty to national regional investment aid, OJ 2006 L 302/29 (no longer in force)	C52
• Regulation 1998/2006/EC on the application of Articles 87 and 88 of the Treaty to de minimis aid, OJ 2006 L 379/5 (end of validity: 31 December 2013)	C51

Update the following:

• Regulation 800/2008/EC declaring certain categories of aid compatible with the common market in application of Articles 87 and 88 of the Treaty (General Block Exemption Regulation), OJ 2008 L 214/3 (no longer in force)	C52
• Regulation    1370/2007/EC    on    public    passenger    transport    services    by    rail    and    by    road and repealing Council Regulations (EEC) Nos 1191/69 and 1107/701, OJ 2007 L 315/1	C52, C53

Add the following:

• Regulation 360/2012/EU on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid granted to undertakings providing services of general economic interest, OJ 2012 L 114/8	C46
• Regulation 1407/2013/EU on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid, OJ 2013 L 352/1	C51
• Regulation 1408/2013/EU on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid in the agriculture sector, OJ 2013 L 352/9	C51
• Regulation 316/2014/EU on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of technology transfer agreements, OJ 2014 L 93/17	C16, C21
• Regulation 651/2014/EU declaring certain categories of aid compatible with the internal market in application of Articles 107 and 108 of the Treaty, OJ 2014 L 187/1	C52
• Proposal for a Directive of the European Parliament and the Council on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union, COM(2013) 404 fin. (adopted April 2014 by the European Parliament, final approval by the Council (of Ministers) to follow)	C56

•    Decision 2005/842/EC on the application of Article 86(2) of the EC Treaty to State aid in the form of public service compensation granted to certain undertakings entrusted with the operation of services of general economic interest, OJ _ 2005 L 312/67 (no longer in force)	C53
•    Decision 2011/695/EU: Decision of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings OJ 2011 L 275/29	C37
•    Decision 2012/21/EU on the application of Article 106(2) of the Treaty on the Functioning of the European Union to State aid in the form of public service compensation granted to certain undertakings entrusted with the operation of services of general economic interest OJ 2012 L 7/3	C53

The following entry must read:

Velcro/Aplix (1985):

Decision 85/410/EEC relating to a proceeding under Article 85 of the EEC Treaty (Velcro/Aplix), OJ 1985 L 233/22

C15

 

 

Add the following entries:

Hutchison 3G Austria/Orange Austria (2012):	Decision of 12 December 2012 declaring a concentration compatible with the internal market and the functioning of the EEA Agreement (Case COMP/M.6497 – Hutchison 3G Austria/Orange Austria), summary published in OJ 2012 C 224/12	C43
Ryanair/Aer Lingus III (2013):	Decision of 27 February 2013 declaring a concentration incompatible with the internal market and the EEA Agreement (Case No COMP/M.6663 – Ryanair/Aer Lingus III), summary published in OJ 2013 C 216/22	C43

 

Delete the following entry:

Delete the following entries:

Commission Guidelines on technology transfer agreements (2004)	Commission Notice: Guidelines on the application of Article 81 of the EC Treaty to technology transfer agreements, OJ 2004 C 101/2	C16, C21
Commission Guidelines on State aid to promote risk capital investments in SMEs (2006)	Community guidelines on state aid to promote risk capital investments in small and medium-sized enterprises, OJ 2006 C 194/2	C49
Commission Guidelines on State aid for environmental protection (2008)	Community guidelines on state aid for environmental protection, OJ 2008 C 82/1	C49

Update the following entries:

Commission Communication: Temporary Union framework for state aid measures to support access to finance in the current financial and economic crisis (2010)	Temporary Union framework for State aid measures to support access to finance in the current financial and economic crisis, OJ 2011 C 6/5 (no longer in force)	C51
Commission Guidelines on horizontal co-operation agreements (2010)	Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co-operation agreements, OJ 2011 C 11/1 (as corrected)	C8, C16, C27

Add the following entries:

Commission Notice on remedies (2008)	Commission notice on remedies acceptable under Council Regulation (EC) No 139/2004 and under Commission Regulation (EC) No 802/2004, OJ 2008 C 267/1	C43
Supplementary Guidelines on motor vehicles (2010)	Commission Notice: Supplementary guidelines on vertical restraints in agreements for the sale and repair of motor vehicles and for the distribution of spare parts for motor vehicles, OJ 2010 C 138/16	C16
Handbook on enforcement of State aid law by national courts (2010)	Handbook: Enforcement of State aid law by national courts (2010), online version: http://ec.europa.eu/competition/publications/state_aid/national_courts_booklet_en.pdf	C56
Commission Notice on best practices (2011)	Commission notice on best practices for the conduct of proceedings concerning Articles 101 and 102 TFEU, OJ 2011 C 308/6	C2
EU Framework for State aid in the form of public service compensation (2011)	Communication: European Union framework for State aid in the form of public service compensation, OJ 2012 C 8/15	C53
Commission Communication on the application of the European Union State aid rules to compensation granted for the provision of SGEI (2012)	Commission Communication on the application of the European Union State aid rules to compensation granted for the provision of services of general economic interest, OJ 2012 C 8/4	C53
Guide to the application of the EU rules on state aid, public procurement and the internal market to SGEI, and in particular to social SGI (2013)	Commission staff working Document: Guide to the application of the European Union rules on state aid, public procurement and the internal market to services of general economic interest, and in particular to social services of general interest, SWD(2013) 53 final/2	C46
Recommendations to the Member States to introduce mechanisms for collective redress (2013)	Commission Recommendation of 11 June 2013 on common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations of rights granted under Union Law, OJ 2013 L 201/60	C56
Communication from the Commission on quantifying harm in actions for damages based on breaches of Article 101 or 102 TFEU (2013)	Communication from the Commission on quantifying harm in actions for damages based on breaches of Article 101 or 102 of the Treaty on the Functioning of the European Union, OJ 2013 C 167/19	C56
Commission Communication on the application of State aid rules to support measures in favour of banks in the context of the financial crisis (2013)	Communication from the Commission on the application, from 1 January 2012, of State aid rules to support measures in favour of banks in the context of the financial crisis, OJ 2013 C 216/1	C51
Commission Guidelines on technology transfer agreements (2014)	Communication from the Commission – Guidelines on the application of Article 101 of the Treaty on the Functioning of the European Union to technology transfer agreements, OJ 2014 C 89/3	C16, C21
Commission Notice on agreements of minor importance (2014)	Communication from the Commission – Notice on agreements of minor importance which do not appreciably restrict competition under Article 101(1) of the Treaty on the Functioning of the European Union (De Minimis Notice), 25 June 2014, C(2014) 4136 fin.	C11-C14
Guidelines on state aid to promote risk finance investments (2014)	Communication from the Commission – Guidelines on State aid to promote risk finance investments, OJ 2014 C 19/4	C49
Guidelines on environmental and energy state aid 2014-2020	Communication from the Commission – Guidelines on environmental and energy state aid 2014-2020, OJ 2014 C 200/1	C49
Draft Guidelines on state aid for rescuing and restructuring non-financial undertakings in difficulty	Draft guidelines on state aid for rescuing and restructuring non-financial undertakings in difficulty; see: http://ec.europa.eu/competition/consultations/2013_state_aid_rescue_restructuring/index_en.html	C49

The following entries must read:

Alrosa (2010):              Case C-441/07 P European Commission v Alrosa Company Ltd [2010] ECR I-5949 (Grand Chamber)          C38

AOK (2004):               Joined cases C-264/01, C-306/01, C-354/01 and C-355/01 AOK
Bundesverband and others v Ichthyol-Gesellschaft Cordes and others
[2004] ECR I-2493          C3

The following entry must read:

BUPA (2008):               Case T-289/03 British United Provident Association Ltd (BUPA), BUPA Insurance Ltd and BUPA Ireland Ltd v Commission of the European Communities. [2008] ECR II-81          C53

 

Add the following entries:

CELF (2008):               Case C-199/06 CELF and Ministre de la Culture et de la Communication v SIDE [2008] ECR I-469 (Grand Chamber)           C54, C56

CELF (2010):               Case C-1/09 CELF and Ministre de la Culture et de la Communication v SIDE [2011] ECR I-1137          C54

Commission v Council (2013):               Case C-121/10 Commission v Council, judgment of 4 December 2013, n.y.r.          C55

Deltafina (2011):               Case T-12/06 Deltafina SpA v Commission, judgment of 9 September 2011, n.y.r.          C35

Donau Chemie (2013):               Case C‑536/11 Bundeswettbewerbsbehörde v Donau Chemie AG and Others, judgment of 6 June 2013, n.y.r.           C56

The following entries must read:

E.ON (2012):               Case C-89/11 P E.ON Energie AG v Commission, ECLI:EU:C:2012:738          C36

 

Add the following entries:

EDF (2012):               Case C‑124/10 P Commission v Électricité de France (EDF), established in Paris (France),  judgment of 5 June 2012, n.y.r.          C50

Expedia (2012):               Case C-226/11 Expedia Inc. v Autorité de la concurrence and Others, judgment of 13 December 2012, n.y.r.          C11, C12

Gibraltar (2011):               Joined cases C-106/09 P and C-107/09 Commission (C-106/09 P) and Kingdom of Spain (C-107/09 P) v Government of Gibraltar and United Kingdom of Great Britain and Northern Ireland, judgment of 15 November 2011 (Grand Chamber)          C50

Intel (2014):               Case T-286/09 Intel Corp. v Commission, judgment of 12 June 2014, n.y.r.          C38

KME (2011):               Case C-272/09 P KME Germany AG v. European Commission, judgment of 8 December 2011, n.y.r.          C37

Kone (2014):               Case C-557/12 Kone AG and Others v ÖBB Infrastruktur AG, judgment of 5 June 2014, n.y.r.          C56

Lufthansa (2013):               Case C‑284/12 Deutsche Lufthansa AG v Flughafen Frankfurt-Hahn GmbH, judgment of 21 November 2013, n.y.r.           C54

 

Add the following entries:

Murphy (2011):               Joined Cases C-403/08 and C-429/08 Football Association Premier League Ltd (FAPL) and Others v QC Leisure a.o. and Karen Murphy v Media Protection Services Ltd [2011] ECR 9083 (Grand Chamber)         C1

Otis (2012):               Case C-494/11 P Otis Luxembourg Sàrl and Others v Commission, judgment of 15 June 2012, n.y.r.          C56

Pfleiderer (2011):              Case C‑360/09 Pfleiderer AG v Bundeskartellamt, judgment of 14 June 2011, n.y.r. (Grand Chamber)          C12, C34

Pierre Fabre (2011):               Case C-439/09 Pierre Fabre Dermo-Cosmétique SAS v Président de l’Autorité de la concurrence, Ministre de l’Économie, de l’Industrie et de l’Emploi [2011] ECR I-9419          C33

SFEI (1996):                Case C-39/94 Syndicat français de l’Express international (SFEI) and others v La Poste and Others [1996] ECR I-3547          C56

The following entries must read:

Traghetti (2010):               Case C-140/09 Fallimento Traghetti del Mediterraneo SpA v Presidenza
del Consiglio dei Ministri [2010] ECR I-5243           C53

X (2009):                 Case C-429/07 Inspecteur van de Belastingdienst v X BV [2009] ECR I-4833          C34

 

Add the following entries:

Tele2 Polska (2011):               Case C-375/09 Prezes Urzędu Ochrony Konkurencji i Konsumentów v Tele2 Polska sp. z o.o., devenue Netia SA, judgment of 3 May 2011, n.y.r. (Grand Chamber)          C34

Toshiba (2012):               Case C-17/10 Toshiba Corporation and Others v Úřad pro ochranu hospodářské soutěže, judgment of 14 February 2012, n.y.r. (Grand Chamber)          C34

The following new title and the following new entry must be added:

VII. Case law of the European Court of Human Rights

Menarini (2011)               Affaire A. Menarini Diagnostics S.r.l. c. Italie, Requête no 43509/08, judgment of 27 September 2011          C37

The following entry must read:

European Convention on Human Rights……………C36-C38, B7

Add the following entry:

Private enforcement…………..C56