I Introduction

The statutory provision that governs abuses of dominance in the European Union (EU) is Article 102 of the Treaty of the Functioning of the EU (TFEU).2 The regulatory body with the power to investigate and sanction abuses is the Competition Directorate-General of the European Commission (the Commission). National competition authorities of individual Member States (NCAs) are competent to apply Article 102 TFEU as long as the Commission has not opened a formal investigation on the same matter.

The procedure for the Commission's enforcement and application of EU competition rules is set out in Regulation 1/2003.3 There are a series of implementing regulations, notices and guidance papers, the most important of which for Article 102 TFEU is the Commission's Guidance Paper on the Commission's enforcement priorities in applying Article 82 of the EC Treaty (the Article 102 Guidance Paper) to abusive exclusionary conduct by dominant undertakings.4

In broad terms, four conditions must be met for Article 102 TFEU to apply:

  • a the entity under investigation must qualify as an ‘undertaking';5
  • b the undertaking must hold a dominant position on a relevant market;
  • c the conduct at issue must qualify as an abuse; and
  • d the conduct must affect trade between Member States.

In most cases, the debate focuses on whether a company holds a dominant position and whether there has been an abuse. This is discussed below.

II Year in Review

In 2016, for the first time in over a decade, the Commission closed no cases through Article 9 commitments or traditional Article 7 infringement decisions.

Instead, the Commission closed one case - the ARA waste management decision - where for the first time it employed the settlement mechanism traditionally used for cartel cases. ARA admitted liability for refusing to supply its rivals with access to its essential household waste management infrastructure, in return for a 30 per cent fine reduction.6

The Commission's most high-profile open cases remain Gazprom, Qualcomm and its three Google investigations (Google Search, Google Android and Google (AdSense)).

In the Gazprom case, the Commission has raised a preliminary concern that Gazprom is hindering competition in gas supply markets in Eastern Europe by restricting cross-border sales and imposing unfair prices. In March 2017, the Commission market tested commitments from Gazprom that it considered capable of resolving its preliminary concerns. The proposed commitments remove restrictions on reselling gas cross-border; introduce certain price-review mechanisms based on competitive price benchmarks; and remove demands relating to gas infrastructure that Gazprom obtained through its alleged dominance.7 The Qualcomm case concerns Qualcomm's alleged exclusivity payments and predatory practices for its chipsets. The Commission served a statement of objections on Qualcomm shortly after Commissioner Vestager took office; Qualcomm argued its case at an oral hearing in November 2016.8 The outcome is pending.

In the Google Search case, the Commission issued a supplementary statement of objections in July 2016 relating to how Google shows groups of ads for product offers compared to free results for comparison shopping services. The Commission is investigating whether the different way that Google ranks and displays product ads compared to free generic results amounts to unlawful favouring. Google argues that the product ads at issue are an enhanced advert format that helps users find relevant products, and offers advertisers better conversion rates. In Google's view, showing ads in clearly marked ad space separate from free results is not favouring; it is how Google monetises the free search service it offers to users. Just before this book went to press, the Commission announced that it was fining Google €2.42 billion for showing product ads.

The Google Android case concerns the agreements that Google enters into with mobile phone manufacturers for the distribution of its apps on mobile phones running the open-source Android operating system. In April 2016, the Commission served a statement of objections provisionally finding that Android is dominant in a relevant market that excludes Apple's iOS, and that Google commits an abuse by asking phone manufactures to preinstall certain Google apps (for example, Google Search). According to the Commission, preinstallion may foreclose rival services because user downloads of apps is not a viable distribution channel. The Commission also served a statement of objections in the Google AdSense case, which relates to the agreements that Google enters into with website owners to show adverts on their pages.

As well as continuing its ongoing cases, the Commission opened two new Article 102 investigations;9 issued a statement of objections addressed to the International Skating Union;10 and conducted unannounced inspections in the Romanian gas market.11

At the court level, the General Court issued judgments in Orange Polska,12 and Morningstar.13 It upheld a Commission rejection decision in Trajektna luka Split, where it noted that the Commission had rejected a complaint after asking, ‘how the alleged abuse of a dominant position could have lasted for several years without having led to [the complainants'] exit from the market.'14

Finally, 2016 was notable for Advocate General Wahl's Opinion in Intel. In short, the advocate general advised that exclusivity rebates should not be treated as a separate category of rebates for which no competitive analysis is necessary to find an abuse. Instead, like loyalty-inducing rebates, they require an assessment of all the circumstances. The advocate general affirmed the general proposition that competition law analysis should not be purely abstract and should not deal with mere possibilities.15 This is because, ultimately, ‘EU competition rules seek to capture behaviour that has anticompetitive effects.'16

The advocate general's opinion also advises that the Commission must record the substance of all meetings with third parties in relation to a matter it is investigating, and must disclose the record to a company under investigation as part of access to file. The record must ‘spell out the substance' of the meeting; disclosing only a ‘succinct summary' is insufficient.17 The Court of Justice's judgment is expected to be delivered on 6 September 2017.

III Market Definition and Market Power

i Market definition

Market definition serves as an analytical framework to assess market power and competitive effects. A relevant market for the purpose of EU competition law circumscribes the sources of competitive constraint faced by the company under investigation.18 The Commission's Market Definition Notice provides guidance on the Commission's approach to market definition for all areas of EU competition law, including the application of Article 102 TFEU, as the Guidance Paper is silent on the topic. The relevant product market comprises all those products or services ‘which are regarded as interchangeable or substitutable by the consumer, by virtue of the products' characteristics, their prices and their intended use'.19 This definition draws on the principles established by the Court of Justice in Michelin, holding that:20

[…] for the purposes of investigating the possibly dominant position of an undertaking on a given market, the possibilities of competition must be judged in the context of the market comprising the totality of the products which, with respect to their characteristics, are particularly suitable for satisfying constant needs and are only to a limited extent interchangeable with other products.

The Commission acknowledges that qualitative differences only allow it as a first step to limit the field of possible substitutes.21 Actual interchangeability is assessed by the hypothetical monopolist (SSNIP)22 test. This asks whether a hypothetical monopolist could profitably impose a 5 to 10 per cent permanent price increase over the candidate products without a sufficient number of consumers at the margin switching to other products to render the price increase unprofitable.23

A number of EU Court judgments have discussed basic principles of market definition in the context of Article 102 TFEU cases.24 But some of these cases are relatively old and remain quite general.25 The Commission's decisional practice and court case law in other areas of EU competition law, including merger control, provides additional insight that is also relevant for Article 102 TFEU cases.26

ii Dominance

The application of Article 102 TFEU requires the company under investigation to have a high degree of market power that is referred to as ‘dominance'. The ECJ has described dominance as ‘a position of economic strength' that provides a company with ‘the power to behave to an appreciable extent independently of its competitors, its customers and ultimately of its consumers'.27

Despite the ubiquitous nature of this dictum (it is cited in virtually every Article 102 TFEU decision and judgment), it provides only limited guidance for companies to understand whether they hold a dominant position. It does not explain, for example, how ‘independently' an undertaking must be able to behave28 or when the threshold of ‘appreciable extent' is crossed.29 What is clear is that no single factor is determinative in assessing a company's dominance.30 Nor does dominance require that there is no competition on the relevant market.31

The Guidance Paper equates the concept of competitive independence with the ability to profitably raise prices above the competitive level.32 Unlike in the context of merger control, where the question is whether the merged entity will prospectively gain power to raise prices, in Article 102 TFEU cases the question is whether the company under investigation already has such power. This does not require regulators to show that the company could raise prices beyond the level that it currently charges (the ‘cellophane fallacy').33 If the company has market power it will already charge above the competitive level at the profit maximising point. Direct proof of dominance would therefore involve comparing the company's prices with what is expected to be the competitive price level. Because determining the competitive price level as a review benchmark is hard, if not impossible, case law has developed indicators for the existence of dominance. The Guidance Paper classifies these broadly into criteria relating to:

  • a constraints imposed by competitors (i.e., an assessment of market structure and market shares);
  • b constraints imposed by the threat of expansion and entry; and
  • c constraints imposed by the bargaining strength of customers.34
Market shares

In the Akzo judgment, the ECJ established a (rebuttable) market share presumption for dominance pursuant to which a company is assumed to be dominant, if it holds a market share of 50 per cent or more in the relevant market.35 The insight underpinning this is that shares of sales indicate whether a company can ‘more easily pursue a pricing policy independent of competitive conditions' and therefore is ‘able to control prices'.36 The Guidance Paper notes that dominance is ‘not likely if the undertaking's market share is below 40 per cent'.37

That said, even above the 50 per cent threshold it is necessary to consider the particular nature and competitive dynamics of the relevant market when assessing market shares. For example, in bidding markets that are characterised by a limited number of large orders, temporary large shares are not indicative of market power.38 Similarly, in markets subject to a high degree of innovation or where services are offered for free, market shares may not be a good proxy for market power.39

Expansion and entry

Any presumption of market power that might accompany a high market share is inapplicable in markets where competitors are able to meet rapidly the demand from customers who want to switch away from the firm with the largest share.40 As recognised in the Guidance Paper, ‘an undertaking can be deterred from increasing prices if expansion or entry is likely, timely and sufficient'.41 In assessing this likelihood, the Commission considers barriers that prevent timely entry or expansion. These can take the forms of legal barriers (such as legislation conferring a statutory monopoly,42 or intellectual property rights),43 or barriers such as economies of scale or scope,44 technological advantages45 or network effects.46

Buyer power

Customers with sufficient countervailing bargaining strength can prevent a company from exercising market power. Buyer power, however, will not necessarily negate a finding of dominance where a strong buyer is only able to protect itself, but not the entire market.47

Generally, exercising buyer power will require that the buyer has viable competitive alternatives or the ability to develop such alternatives.48 Even a large buyer will have little or no power if it has no alternative supply options to which it can realistically turn.49 That said, in some instances, buyer power may also come from the ability of the buyer to retaliate against the seller. For example, in the case of patent licensing, a patent owner may be constrained by the patent portfolios of licensees if it is vulnerable to countersuits in the event of overcharging for its own patents. In the case of a multi-product firm that serves the same buyers in different product markets, buyers may constrain the firm's ability to charge supracompetitive prices in a dominant market by threatening to switch their purchases in non-dominant markets.

IV Abuse

i Overview

Holding or acquiring a dominant position is not in itself unlawful under EU competition law. A dominant company only infringes Article 102 TFEU if it abuses its dominant position to restrict or distort competition.

The classic formulation of an abuse is from Hoffmann-La Roche:

The concept of an abuse is an objective concept relating to the behaviour of an undertaking in a dominant position which is such as to influence the structure of a market where, as a result of the very presence of the undertaking in question, the degree of competition is weakened and which, through recourse to methods different from those which condition normal competition in products or services on the basis of the transactions of commercial operator, has the effect of hindering the maintenance of the degree of competition still existing in the market or the growth of that competition.50

ii Exclusionary abuses

An exclusionary abuse takes place if a dominant company forecloses competitors in an anticompetitive manner. Not every foreclosure of competitors is anticompetitive. It is a normal (and desirable) part of the competitive process that competitors that have less to offer to customers may leave the market. This has been recognised in the Guidance Paper and has now been affirmed by the ECJ in Post Danmark I. As the ECJ noted:

Competition on the merits may, by definition, lead to the departure from the market or the marginalisation of competitors that are less efficient and so less attractive to consumers from the point of view of, inter alia, price, choice, quality or innovation.51

The key task in an abuse analysis is therefore to distinguish between anticompetitive conduct and competition on the merits.

Article 102 TFEU lists a number of abusive practices. But these are not exhaustive: sui generis abuses can be identified in individual cases.52 The Guidance Paper discusses legal criteria for categories of exclusionary abuses that have been identified in past cases. These legal criteria serve as successive filters to distinguish between abusive behaviour and legitimate pro-competitive conduct.

Outside the abuse categories discussed in the Guidance Paper, conduct must be assessed based on general principles. New abuses cannot be postulated without limitation: if a type of conduct falls within an existing category of abuse (such as refusal to supply or tying), the legal conditions necessary to establish that abuse need to be satisfied.

The case law qualifies certain categories of conduct as ‘by nature' abuses (for example, discounts conditioned on exclusivity, discussed below): ‘by nature' abuses do not require a full analysis of anticompetitive effects. Outside the ‘by nature' exceptions, a ‘fully-fledged effects analysis has to be performed'.53

This fully-fledged analysis requires proving at least the following five elements:

  • a the dominant company's abusive conduct must hamper or eliminate rivals' access to supplies or markets.54 That is, the abusive conduct must create barriers to independent competition;55
  • b the abusive conduct must cause the anticompetitive effects.56 Proving causation requires comparing prevailing competitive conditions with an appropriate counterfactual where the conduct does not occur;57
  • c the anticompetitive effects must be reasonably likely.58 If conduct has been ongoing for some time without observable anticompetitive effects, that suggests the conduct is not likely to cause anticompetitive effects in the first place;59
  • d anticompetitive foreclosure must be determined by reference to equally efficient competitors.60 Any possible foreclosure of competitors can only be anticompetitive if it is liable to exclude competitors that are at least as efficient as the dominant company;61 and
  • e the anticompetitive effects must be sufficiently significant to create or reinforce market power.62

Even if a company abuses its dominance, it retains the possibility to justify its conduct - even for ‘by nature' abuses (referred to as ‘objective justification'). To do so, the company must show that the conduct is either objectively necessary or produces efficiencies that outweigh restrictive effects on consumers.63 If a dominant company raises evidence of objective justification, it ‘falls to the Commission [...] to show that [...] the justification put forward cannot be accepted'.64

These general principles are discussed in relation to various different types of abuse below.

Predatory pricing

Predatory pricing arises where a dominant company prices its products below costs such that even equally efficient competitors cannot viably remain on the market. In Akzo, the ECJ established a two-test rule for the assessment of predatory pricing conduct under Article 102 TFEU:65 (1) pricing below average variable cost (AVC) is presumptively abusive;66 (2) pricing below average total cost (ATC) but above AVC is abusive if it is shown that this is part of a plan to eliminate a competitor.67 The principle set out in the Guidance Paper in assessing predatory pricing conduct is that of a profit sacrifice (i.e., the dominant company deliberately foregoes profits in the short term so as to foreclose competitors with a view to strengthening market power).68 There may be cases where alternative benchmarks, such as average incremental costs, are more appropriate, where, for example, an industry is characterised by high fixed costs and very low variable costs.69

Margin squeeze

A margin squeeze occurs when a vertically integrated company sells an input to its downstream competitors at a high price and at the same time prices its own downstream product at a low price such that its competitors are left with insufficient margin to compete viably in the downstream market. This is abusive in EU law when ‘the difference between the retail price charged by a dominant undertaking and the wholesale prices it charges its competitors for comparable services is negative, or insufficient to cover the product-specific costs to the dominant operator of providing its own retail services on the downstream market'.70

Until recently, margin squeeze cases have generally been viewed as instances of a constructive refusal to supply. But the EU Court's judgments in TeliaSonera and Telefonica have held that it is not necessary to establish the legal conditions for an abusive refusal to supply in such cases. These judgments therefore treat margin squeeze practices as being more akin to predatory pricing behaviour, particularly as they analyse the margin squeeze under Article 102(a) TFEU.

Exclusive dealing

The Guidance Paper describes exclusive dealing as an action by a dominant undertaking ‘to foreclose its competitors by hindering them from selling to customers through use of exclusive purchasing obligations or rebates'. Both Articles 101 TFEU71 and 102 TFEU can apply to exclusive dealing, although traditionally the approach under Article 101 TFEU has been more economic, while under Article 102 TFEU it has historically been treated more as a per se abuse.72

Exclusive purchasing

An exclusive purchasing obligation requires a customer to purchase all or a large majority of its needs for a specific product from one supplier. The current approach of the Commission and the courts is to look closely at the actual or likely effects of a particular agreement on the relevant market and assess whether it harms consumers.73 Factors the Commission will take into account include the duration of the obligation, customers' switching costs, and whether the dominant undertaking is an unavoidable trading partner.74

Exclusionary discounts

While the grant of discounts (also known as rebates) is generally pro-competitive, certain forms of discounts may constitute an abuse if applied by a dominant company. The concern is that the dominant company leverages its larger base of sales for calculating discounts in ways that preclude smaller (but equally efficient) competitors from competing for the contestable portion of a customer's demand. While the discount remains above costs for the dominant company because it can spread the discount across a larger base of sales, smaller competitors would be forced to price below costs to match the discounts since they would have to amortise it over a smaller base.

The case law generally distinguishes between three categories of rebates:

  • a volume-based rebates that pay out based on the volume of a customer's purchases: Reflecting gains in efficiency and economies of scale, volume-based rebates are presumptively lawful;75
  • b rebates conditioned on exclusivity, which require a customer to obtain all or most of its requirements from the dominant company in order to get the rebate: Exclusivity rebates have been condemned in a number of past cases, including Hoffmann-La Roche, Michelin, British Airways,76 Intel77 and Tomra, following a relatively abstract, form-based analysis. These cases have treated exclusivity rebates as restrictive of competition by their very nature, so do not require proof of anticompetitive effects; and
  • c loyalty-inducing rebates that possess a loyalty-building mechanism without being directly linked to exclusive or quasi-exclusive supply: These require an assessment of all the circumstances to determine whether the rebate is likely to foreclose equally efficient competitors.78 The relevant circumstances include whether the rebates are individualised or standardised, the length of the reference period, the conditions of competition prevailing on the relevant market, the proportion of customers covered by the rebate and whether a rebate is retroactive or incremental.79

In his recent Intel opinion, however, Advocate General Wahl advised that exclusivity rebates ‘should not be regarded as a separate and unique category of rebates'.80 Instead, they form part of the third category and require an assessment of ‘all the circumstances' before they can be classified as abusive. It is yet to be seen how the ECJ will decide the issue.

Tying

Tying occurs when a supplier sells one product, the ‘tying product', only together with another product, the ‘tied product'. The seminal case on tying involved Microsoft's tying of its Windows operating system with its Windows Media Player.81 The Court found that Microsoft's tying of Windows Media Player (a qualitatively inferior product) to Windows, the ubiquitous operating system, foreclosed OEMs as a distribution channel for rival media players. Rival means of distribution, notably internet downloads, were not viable because they were slow, difficult and prone to failure. The Commission, upheld by the General Court, identified five conditions for an abusive tying:

  • a the tying and tied good are two separate products;
  • b the undertaking concerned is dominant in the tying product market;
  • c customers have no choice but to obtain both products together;
  • d the tying forecloses competition; and
  • e there is no objective and proportionate justification for the tie.82

A central element of a tying analysis is to establish whether two components constitute separate products or an integrated whole. In Microsoft, the General Court held that such an assessment must be based on ‘a series of factors', including ‘the nature and technical features of the products concerned, the facts observed on the market, the history of the development of the products concerned and […] commercial practice'.83

A dominant company may achieve the same effect as tying by ostensibly offering a stand-alone version of the dominant tying product alongside a bundled version, but at a price that renders it commercially unrealistic for customers to take the stand-alone version. Past cases have condemned the grant of discounts on dominant products that are conditioned on customers also taking non-dominant products.84 In the Guidance Paper, the Commission takes the position that such bundled discounts must be assessed by allocating the discounts fully to the price of the non-dominant ‘tied' product. If that calculation results in a price below the dominant company's long run average incremental costs of supplying the ‘tied' product, the discount is anticompetitive (unless rivals are able to replicate the bundle).85

Refusal to deal

As a general rule, companies, including dominant companies, are free to decide whether to deal with a counterparty. As Advocate General Jacobs confirmed in Bronner, it is ‘generally pro-competitive and in the interest of consumers to allow a company to retain for its own use facilities which it has developed for the purpose of its business'.86 A refusal by a dominant undertaking to supply its products can therefore amount to an abuse under Article 102 TFEU only in exceptional circumstances. According to established case law, the following general conditions must be met for such an abusive refusal:

  • a the requested input must be indispensable to compete viably;
  • b the refusal is likely to eliminate all competition in the downstream market; and
  • c there is no objective justification for the refusal.87

The indispensability requirement is a high threshold: the input must be essential for a commercially viable business to compete on the downstream market. The test is whether there are ‘technical, legal or economic obstacles capable of making it impossible or at least unreasonably difficult' to create alternatives, or to create them within a reasonable timeframe.88 If there are ‘less advantageous' alternatives, that means the input is not indispensable. For example, in Bronner, access to Mediaprint's (a newspaper distributor's) delivery network was not indispensable because Bronner could have used kiosks, shops and post. Mediaprint's refusal to grant access was, therefore, not abusive.

If the refusal involves intellectual property rights (i.e., a refusal to license) it is moreover necessary to demonstrate that the refusal would prevent the emergence of a new product or would hinder technical development and innovation more generally.89

iii Discrimination

Unlawful discrimination pursuant to Article 102(c) TFEU may arise if a dominant company applies different terms to different customers for equivalent transactions. But such abusive ‘price discrimination' requires proof that: (1) similar situations are being treated in a dissimilar manner without legitimate commercial reasons; and (2) that some customers are placed at a ‘competitive disadvantage' relative to other customers to such a degree that it creates a risk of foreclosing equally efficient competitors.

Not every different treatment is discriminatory. As a general matter, the EU courts have recognised that differences arising from individual negotiations of terms can be explained by legitimate commercial reasons.90 Other considerations that may be taken into account include, for example, whether the transactions involve similar products,91 costs92 or timing.93 Moreover, even if there is ‘discrimination', the ECJ's Post Danmark judgment has made clear that such discrimination is only abusive if it is liable to foreclose equally efficient companies.94 ‘Pure' discrimination cases are rare.95 In past cases, discrimination-type concerns have typically been raised as an ‘added' consideration in connection with abusive exclusionary pricing practices, such as retroactive volume rebates.

iv Exploitative abuses

Article 102(a) TFEU provides that an abuse may consist of ‘directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions'. But the difficulty in determining a benchmark by which prices can be assessed as being unfair has led to a dearth of decisional practice on this issue.96 In Scandlines Sverige, the Commission set out what it considers the most appropriate methodology for assessing unfair prices. The questions to be determined are: (1) whether the difference between the costs actually incurred and the price actually charged is excessive; and, if the answer to that is yes, then (2) whether a price has been imposed that is either unfair in itself or when compared to the price of competing products.97

V Remedies and Sanctions

Regulation 1/2003 provides the mechanism by which the Commission sanctions infringements of Article 102 TFEU. The Commission is entitled to impose structural or behavioural remedies, interim measures, fines and periodic penalty payments.98 Alternatively, an undertaking can itself offer commitments to bring the infringement to an end, thereby avoiding a formal finding of an infringement and a fine.

i Sanctions

The Commission can impose a fine of up to 10 per cent of a company's total turnover of the preceding business year for infringements of Article 102 TFEU. The Commission has set out in detail the methodology by which it sets fines, which will take into account, inter alia, the nature, length and scope of the infringement, the value of sales of goods affected by the infringement, and whether there are aggravating or mitigating circumstances.99

Before 2004, the Commission had never imposed a fine for an infringement of Article 102 TFEU that exceeded 1 per cent of the turnover of the undertaking involved. But in recent years, the Commission has shown a tendency to impose increasingly high fines for abusive conduct, both in absolute and percentage terms, culminating in cases such as Tomra,100 where the fine represented 7 per cent of annual turnover, and Intel,101 where the Commission imposed a record fine of €1.06 billion.102

Fines can be imposed for a failure to abide by interim measures or commitment decisions. In 2013, the Commission fined Microsoft €561 million for failing to comply with its browser choice screen commitments. The Commission is also entitled to impose procedural fines of up to 1 per cent of an undertaking's annual turnover if an undertaking provides false or late answers to the Commission's requests for information.103 Finally, the Commission is empowered to impose periodic penalty payments to compel companies to abide by remedies and commitments decisions.104

ii Remedies

Remedies, whether imposed by the Commission or offered voluntarily by an undertaking as commitments, must fulfil certain key objectives. They must: (1) bring the infringement to an end; (2) be proportionate in both scope and duration; (3) not be easily circumvented; and (4) address the competitive distortions resulting from the abuse.105

In addition, where an infringement can be brought to end in different ways, the Commission cannot ‘impose […] its own choice from among all the various potential courses of actions which are in conformity with the treaty'.106 This means that the Commission can only impose a specific behavioural remedy if it is ‘the only way of bringing the infringement to an end'.

Behavioural remedies

Considerations of expediency and proportionality mean that behavioural remedies are preferred in Article 102 TFEU cases.107 Structural remedies are only a means of last resort. Behavioural remedies may require the dominant undertaking either to engage in a positive action to bring the infringement to an end or to abstain from a certain type of conduct.108 Positive obligations have included:

  • a the granting of a compulsory licence;109
  • b raising prices above an exclusionary level;110 and
  • c other forms of compulsory dealing.111

Meanwhile, negative obligations have included unbundling products112 and bringing rebates conditioned on exclusivity to an end.113

Structural remedies

Structural remedies are used to rectify effects or abuses that have caused a change in the structure of the market. They will only be proportionate where ‘there is a substantial risk of a lasting or repeated infringement that derives from the very structure of the undertaking'.114 Structural remedies may be considered, for example, for foreclosure problems that arise from vertical integration.115 Thus, in ENI, the Commission identified concerns with regard to conduct by ENI that result from its ownership of strategic natural gas pipeline infrastructure.116 ENI offered to divest its stake in its international transport businesses and, consequently, the Commission held that ‘ENI will no longer be subject to the inherent conflict of interest it faced operating both as a transmission system operator and as a company active on the Italian wholesale market'.117

VI Procedure

The procedural rules for the conduct of Commission investigations are laid out in Regulation 1/2003 and the Commission's Implementing Regulation.118 In 2012, the Commission published a version of its internal manual of procedure, which provides additional guidance on the Commission's handling of competition law proceedings.119 A brief summary of the main procedural steps in a typical Article 102 TFEU investigation follows.

  • a The Commission can begin investigations both as a result of complaints by third parties and on its own initiative. Sector inquiries can also provide the impetus for investigations.
  • b The Commission's primary instrument of investigation is issuing requests for information. In the past few years, such requests have become increasingly detailed and may involve the production of large quantities of data and internal documents. The Commission may oblige companies to respond to requests for information through the adoption of formal decisions that are subject to penalty payments.
  • c The Commission may conduct unannounced inspections, or ‘dawn raids', at a company's premises to obtain documents and information, although such dawn raids are relatively rare in Article 102 cases. Documents that contain advice from external counsel are protected by legal professional privilege, while in-house counsel documents do not benefit from such protection.120
  • d After considering the evidence, the Commission will decide whether to: close proceedings; enter settlement discussions; or issue an SO to the company concerned.
  • e The addressee of the SO is entitled to review the Commission's file and respond to the SO in writing. The Commission will also grant the company in question an oral hearing, if requested.
  • f Following the defendant's reply to the SO, and a possible oral hearing, the Commission will proceed to a decision (this may occur only after a number of supplementary statements of objections or letter of facts that seek to bolster the Commission's initial charges). An adverse decision can be appealed to the General Court on both points of fact and law, and from there to the ECJ on points of law only.

Commission proceedings can be resolved through the offer of commitments. Negotiation of commitments can take place both prior to adoption of an SO or following an SO and response. If the Commission considers the offered commitments to be acceptable, it will subject them to a public market test and, if confirmed, make them binding through adoption of a decision under Article 9 of Regulation 1/2003. Commitment decisions involve no finding of infringement and entail no fines.

The Commission can also settle cases with companies under investigation. This involves the company admitting liability in exchange for a 10 per cent fine reduction. Traditionally, this procedural mechanism has been limited to cartels, but in the ARA case, the Commission for the first time found an infringement, while rewarding ARA with a 30 per cent fine reduction for its cooperation.121

VII Private Enforcement

While public enforcement is the core of EU antitrust enforcement, actions brought by private claimants before national courts are an increasingly important complement to public enforcement activity.122 The Commission aims to encourage and facilitate such actions. To this end, it published a proposal for a Directive on private damages actions in June 2013,123 together with a practical guide on quantifying harm resulting from competition infringements,124 and a recommendation for collective redress mechanisms in Member States.125 The Directive's stated aim is to optimise the interaction between public and private enforcement of competition law; to minimise discrepancies between rules applicable to antitrust damages actions in Member States; and to ensure that victims of infringements of EU competition law can obtain full compensation for the harm they have suffered. Among other things, the Directive introduces rules on the disclosure of evidence in such cases, as well as on the standing of indirect customers, the length of limitation periods, joint and several liability of infringers, and the passing-on of damages as a possible defence.

VIII Future Developments

We highlight two areas to watch closely in the future.

First, Commissioner Vestager has spoken publicly of the need to address exploitative abuses - historically, an area of low priority for the Commission. The Commissioner noted possible exploitative abuses in the gas industry, in pharmaceuticals and with standard-essential patents. Consistent with this, the Commission in May 2017 opened a probe into Aspen Pharma's pricing of cancer drugs. The Commission appears to be following an EU-wide trend, with agencies in both the UK and Italy bringing recent cases alleging excessive pricing in the pharmaceutical sector.

Second, there is concern that increasing international protectionism in industrial policy may spill over into competition law enforcement. It is to be hoped that antitrust enforcement in Europe continues to be based on facts and the rule of law, not politics. European case law under Article 102 TFEU provides a sound framework for the application of antitrust principles in way that promotes consumer welfare through the competitive process without falling prey to unrelated political considerations. The EU Commission should follow that framework consistently and predictably.

1 Thomas Graf is a partner and Henry Mostyn is an associate at Cleary Gottlieb Steen & Hamilton LLP. The authors express their gratitude to their colleague Conor Opdebeeck-Wilson for his assistance with writing this chapter.

2 With effect from 1 December 2009, Articles 81 and 82 of the EC Treaty became Article 101 and Article 102 TFEU. The two sets of provisions are, in substance, identical, and references in this paper to Article 102 TFEU should be understood as a reference to Article 82 of the EC Treaty.

3 Council Regulation (EC) No. 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the EC Treaty (Regulation 1/2003), OJ L 1, 04.01.2003.

4 Guidance on the Commission's enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings (the Guidance Paper), OJ 2009 C 45/7.

5 The concept of ‘undertaking' has been interpreted widely by the European Courts. See Case C-41/90, Höfner and Elser v. Macroton GmbH, judgment of 23 April 1991, ECLI:EU:C:1991:161, paragraph 21: ‘The concept of an undertaking encompasses every entity engaged in an economic activity, regardless of the legal status of the entity or the way in which it is financed.'

6 Case AT.39759 - ARA foreclosure, Commission decision of 20 September 2016.

7 See Antitrust: Commission invites comments on Gazprom commitments concerning Central an Eastern European gas markets, 13 March 2017.

8 See ‘Qualcomm to fight EU antitrust charge at November 10 hearing: sources', www.reuters.com/article/us-eu-qualcomm-antitrust-idUSKCN12025T.

9 Case AT.40134 - Limes, Commission press release IP/16/2361 (investigation focusses on AB InBev's restrictions of parallel trade by hindering imports of its beer from neighboring countries); and České Dráhy, Commission press release IP/16/3656 (investigation focuses on the Czech railway incumbent's practice of predatory pricing).

10 Case AT.40208 - International Skating Union's Eligibility rules, Commission press release IP/16/3201.

11 Case AT.40.335 - Romanian gas market, Commission STATEMENT/16/2133 (inspections related to behavior aimed at hindering natural gas exports from Romania to other Member States).

12 Case T-486/66, Orange Polska S.A., formerly Telekomunikacja Polska S.A. v. Commission, judgment of 17 December 2015, ECLI:EU:T:2015:1002.

13 Case T-76/14, Morningstar, Inc. v. Commission, judgment of 15 September 2016, ECLI:EU:T:2016:481.

14 Case T-70/15, Trajektna luka Split v. Commission, judgment of 30 September 2016, ECLI:EU:T:2016:592.

15 Case C-413/14, Intel, opinion of Advocate General Wahl delivered on 20 October 2016, ECLI:EU:C:2016:788 (Intel), paragraphs 73, 113, 145.

16 Intel, paragraph 43.

17 Intel, paragraphs 237, 247, 264.

18 Commission Notice on the definition of the relevant market for the purposes of community competition law (the Market Definition Notice), OJ 1997 C 372/5, paragraph 2.

19 Market Definition Notice, paragraph 7. Either ‘demand-side substitutability' (the ability of consumers to switch their consumption to alternative products in the case of a small change in relative price) or ‘supply-side substitutability' (the ability of suppliers to switch production to the products under consideration and market them in the short term without incurring significant additional costs or risks in response to small change in relative price) can provide effective competitive constraints, and when either is present the relevant market ought to be widened; although the Commission considers that ‘demand substitution constitutes the most immediate and effective disciplinary force on the suppliers of a given product'. See the Market Definition Notice, paragraph 13. The same basic principles apply to geographic market definition (in geographic market definition, barriers to trade such as language, import tariffs or regulatory features may be specific additional considerations).

20 Case 322/81 Nederlandsche Banden-Industrie Michelin v. Commission, judgment of 9 November 1983, ECLI:EU:C:1983:313 (Michelin), paragraph 37.

21 Market Definition Notice, paragraph 36.

22 Small but significant non-transitory increase in price.

23 Market Definition Notice, paragraph 17.

24 For example, Case 6/72, Europemballage Corporation and Continental Can Company Inc. v. Commission, judgment of 21 February 1973, ECLI:EU:C:1973:22 (Continental Can); and Case 85/76, Hoffmann-La Roche v. Commission, judgment of 13 February 1979, ECLI:EU:C:1979:36 (Hoffmann-La Roche).

25 For an example that engages in a detailed discussion of market definition principles in the pharmaceutical sector, see the judgment of the General Court in Case T-321/05, AstraZeneca, judgment of 1 July 2010, ECLI:EU:T:2010:266; confirmed in Case C-457/10 P, AstraZeneca v. Commission, judgment of 6 December 2012, ECLI:EU:C:2012:770 (AstraZeneca).

26 See Nicholas Levy, European Merger Control Law: A Guide to the Merger Regulation (Twelfth edition, Matthew Bender & Co, 2015), Chapter 8, for a discussion of market definition in EU merger control.

27 United Brands, paragraph 65 and Hoffmann-La Roche, paragraph 38. The Commission's Guidance Paper relies on the same definition, Guidance Paper, paragraph 10.

28 Of course, no undertaking can literally act ‘independently' of its customers: even a monopolist is constrained by the demand curve for its product, which is affected by extra-market constraints, and the reduction in demand from customers as price increases.

29 See Bo Vesterdorf, ‘Article 102 of the TFEU and sanctions: appropriate when?', ECLR 2011, 32(11), 573-579.

30 United Brands, paragraph 66.

31 United Brands, paragraph 113.

32 Guidance Paper, paragraph 10. See also Case COMP/39.525 Telekomunikacja Polska, Commission Decision of 22 June 2011, not yet published, paragraph 641.

33 For further discussion of the cellophane fallacy, see S Bishop and M Walker, The Economics of EC Competition Law: Concepts, Application and Measurement (third edition, London, Sweet & Maxwell, 2010).

34 Guidance Paper, paragraph 12.

35 Case C-62/86, Akzo Chemie v. Commission, judgment of 3 July 1991, ECLI:EU:C:1991:286 (AKZO), paragraph 60: ‘With regard to market shares the Court has held that very large shares are in themselves, and save in exceptional circumstances, evidence of the existence of a dominant position. That is the situation where there is a market share of 50 per cent such as that found to exist in this case.'

36 Case C-62/86, Akzo Chemie v. Commission, opinion of Advocate General Lenz delivered on 19 April 1989, ECLI:EU:C:1991:286, paragraphs 111, 114.

37 Guidance Paper, paragraph 14.

38 For this reason, the Guidance Paper notes that ‘the higher the market share and the longer the period over which it is held, the more likely it is that it constitutes an important preliminary indication of the existence of a dominant position', Guidance Paper, paragraph 15.

39 Thus, in IBM/Telelogic, the Commission held that market share data did not represent a ‘direct proxy for market power' in markets characterised by competition on quality and innovation, in particular because ‘competitors who do not regularly upgrade their products, or who do not introduce new products meeting increasing customers' requirements, will rapidly lose out', Case COMP/M.47447, IBM/Telelogic, Commission decision of 5 March 2008, paragraph 151. See also Case T-79/12, Cisco Systems and Messagenet v. Commission, judgment of 11 December 2013, ECLI:EU:T:2013:635 where the General Court confirmed that because of the high degree of innovation and the fact that services are provided for free (so that any attempt to increase prices ‘would encourage consumers to switch supplier'), market shares of 80-90 per cent were not indicative of market power.

40 Hoffmann-La Roche, paragraph 41.

41 Guidance Paper, paragraph 16.

42 See, for example, Case 89/113/EEC Decca Navigator Systems, Commission decision of 21 December 1988.

43 See, for example, Case COMP/35.141 Deutsche Post, Commission decision of 20 March 2001, OJ 2001 L 125/27.

44 United Brands, paragraph 122. The extensive investments that a new entrant to the banana market would need to make were held to be ‘particular barriers to competitors entering the market' since they generated ‘economies of scale from which newcomers to the market cannot derive any immediate benefit and […] the costs of which are irrecoverable if the [entry] attempt fails'.

45 See, for example, Hoffmann-La Roche, paragraph 48.

46 This refers to the phenomenon whereby a product or service becomes more valuable to each user when more people use it. See, for example, Case COMP/39.530 Microsoft (Tying), Commission Decision of 16 December 2009, paragraph 420.

47 Guidance Paper, paragraph 18.

48 Guidance Paper, paragraph 18.

49 See, for example, Case COMP/37.990, Intel, paragraphs 886, 889: ‘Throughout its argumentation on buyer power, Intel ignores the fundamental element in its relationship with OEMs, namely the fact that it is an unavoidable trading partner for them: OEMs depend on Intel for what is the most important single hardware component in their computers. As such, Intel is a must-stock brand.'

50 Hoffmann-La Roche, paragraph 121.

51 Case C-209/10, Post Danmark A/S v. Konkurrencerådet, judgment of 27 March 2012, ECLI:EU:C:2012:172 (Post Danmark I), paragraph 22.

52 See Continental Can, paragraph 26. AstraZeneca, with its regulatory-type abuses, represents a recent example.

53 Intel, paragraph 120.

54 Guidance Paper, paragraph 19.

55 Case 262/81, Coditel v. Ciné-Vog Films, judgment of 6 October 1982, ECLI:EU:C:1982:334, paragraph 19.

56 Case C-23/14, Post Danmark II, judgment of 6 October 2015, ECLI:EU:C:2015:651, paragraph 47.

57 Guidance Paper, paragraph 21.

58 Case T-201/04, Microsoft v. Commission, judgment of 17 September 2007, ECLI:EU:T:2007:289 (Microsoft), paragraph 1089.

59 Case T-70/15, Trajektna luka Split v. Commission, ECLI:EU:T:2016:592, judgment of 30 September 2016, paragraph 24.

60 Post Danmark I, paragraphs 21-22; and Guidance Paper, paragraphs 25-27.

61 Although the exclusion of equally efficient competitors is the usual litmus test for abusive conduct, in limited, specific circumstances, a finding of abuse is possible without relying on the test. In Post Danmark II, the ECJ held that the Commission's Guidance Paper was a statement of the Commission's priorities but was not binding on the Union's courts. The ECJ found that, with respect to rebate schemes, there is no legal obligation that the effects of the scheme applied by a statutory monopoly must be measured against an as-efficient competitor (paragraph 57). In cases where the extent of an undertaking's dominance or where rigidities in the market's structure precluded the entry of an as-efficient competitor, the test was ‘of no relevance' (paragraph 59).

62 Guidance Paper, paragraphs 11 and 19.

63 Post Danmark I, paragraph 41; Guidance Paper, paragraph 28.

64 Microsoft, paragraph 688.

65 Confirmed in Case C-333/94 P, Tetra Pak v. Commission, decision of 14 November 1996, ECLI:EU:C:1996:436; and Case C-202/07 P, France Telecom SA v. Commission, judgment of 2 April 2009, ECLI:EU:C:2009:214.

66 See Akzo, paragraph 71: ‘A dominant undertaking has no interest in applying such prices except that of eliminating a competitor so as to enable it to subsequently raise its prices by taking advantage of its monopolist position.'

67 Ibid., paragraph 72: ‘Such practices can drive from the market undertakings which are perhaps as efficient as the dominant undertaking but which, because of their smaller financial resources, are incapable of withstanding the competition waged against them.'

68 See Guidance Paper, paragraphs 64-66. The Guidance Paper in fact refers to cost benchmarks of average avoidable cost (AAC) and long-run average incremental cost (LRAIC), but recognises that these are likely to be the good proxies for AVC and ATC respectively. See Guidance paper, paragraphs 26-27.

69 See, for example, Post Danmark I (supra), paragraph 33. The ECJ in Post Danmark I (at paragraphs 39-40) also appeared to suggest that proof of anticompetitive effects can substitute for proof of intent in the second Akzo scenario (i.e., where a dominant firm's price is between AVC and ATC).

70 Case COMP/C-1/37.451 Deutsche Telekom, Commission decision of 21 May 2003, paragraph 107, upheld on appeal by the General Court. Confirmed in TeliaSonera, paragraphs 31-34. A test for a margin squeeze formulated in the Guidance Paper at paragraph 80 is as follows: ‘Finally, instead of refusing to supply, a dominant undertaking may charge a price for the product on the upstream market which, compared to the price it charges on the downstream market, does not allow even an equally efficient competitor to trade profitably in the downstream market on a lasting basis (a ‘margin squeeze).'

71 In many cases the block exemption regulation on vertical agreements will apply to exempt such agreements from Article 101 TFEU, provided that: (1) the supplier has a market share of no more than 30 per cent; (2) the exclusive purchasing contract contains no hard-core restrictions; and (3) the exclusivity lasts for less than five years. See Commission Regulation (EU) 330/2010 of 20 April 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices, OJ 2010 L 102/1.

72 See, for example, Hoffmann-La Roche. This approach was partially questioned in Case T-65/98, Van den Bergh Foods v. Commission, judgment of 23 October 2003, ECLI:EU:T:2003:281 (Van den Bergh Foods) and has been fully challenged by Advocate General Wahl's Opinion in Intel.

73 See Van den Bergh Foods, paragraph 160.

74 Guidance Paper, paragraph 36.

75 Hoffmann-La Roche, paragraph 90; Case T-203/01, Michelin v. Commission, judgment of 30 September 2003, ECLI:EU:T:2003:250, paragraph 58.

76 Case C-95/04 P, British Airways plc v. Commission, judgment of 15 March 2007, ECLI:EU:C:2007:166.

77 Intel.

78 Post Danmark I, paragraphs 31-32.

79 Post Danmark II. Post Danmark held a market share of 95 per cent in bulk mail. It calculated its retroactive rebates across customers' total demand for bulk mail, covering both non-contestable demand protected by the statutory monopoly and contestable demand. In this way, the retroactive rebates enabled Post Danmark to tie contestable demand to its non-contestable share, which represented around 70 per cent of total demand. Customers switching contestable demand to competitors would lose discounts on their large portion of non-contestable demand. This protected Post Danmark's position in bulk mail, where competition was already limited by the partial statutory monopoly. The ECJ held that for determining whether the discount system was abusive, it was necessary to consider ‘all the circumstances' of the case. Unsurprisingly, in the circumstances, the ECJ concluded that Post Danmark's retroactive rebate system infringed Article 102 TFEU.

80 Intel, paragraph 160.

81 Prohibition decisions have been adopted in a number of other cases involving tying allegations, including Case T-30/89, Hilti A G v. Commission, judgment of 12 December 1991, ECLI:EU:T:1991:70; and Case C-193/83, Windsurfing International Inc v. Commission, judgment of 25 February 1986, ECLI:EU:C:1986:75.

82 See Case COMP/C-3/37.792, Microsoft, Commission decision of 24 March 2004, paragraph 794. The Court of First Instance confirmed that the five conditions were ‘consistent both with Article 82 EC and with the case law' and followed from ‘the very concept of bundling'. See Microsoft, paragraph 859. See also Guidance Paper, paragraphs 47-74.

83 See Microsoft, paragraph 925.

84 See for example, Hoffmann-La Roche, paragraphs 110-111; Case COMP/37.859 Hays/La Poste Belge & Key Mail, Commission Decision of 5 December 2001, OJ 2002 L 61/32.

85 Guidance Paper, paragraph 60.

86 Case C-7/97, Bronner, opinion of Advocate General Jacobs delivered on 28 May 1998, ECLI:EU:C:1998:264 (Bronner opinion), paragraph 57.

87 Bronner opinion, paragraph 41; Case T-374/94, European Night Services and Others v. Commission, judgment of 15 September 1998, ECLI:EU:T:1998:198; Case T-504/93, Tiercé Ladbroke v. Commission, judgment of 12 June 1997, ECLI:EU:T:1997:84.

88 Case C-7/97, Bronner, judgment of 26 November 1998, ECLI:EU:C:1998:569, paragraph 44.

89 Microsoft, paragraph 332; Case C-418/01 IMS Health v. NDC Health, judgment of 29 April 2004, ECLI:EU:C:2004:257, paragraph 52; and Case C-241/91 P, RTE and ITP v. Commission, judgment of 6 April 1995, ECLI:EU:C:1995:98 (Magill), paragraphs 50-56.

90 Michelin, paragraph 90.

91 See, for example, Case COMP/38.096 Clearstream, Commission decision of 2 June 2004; Case T-301/04, Clearstream v. Commission, judgment of 9 September 2009, ECLI:EU:T:2009:317; and see Case COMP/36.568 Scandlines Sverige v. Port of Helsingborg, Commission decision of 23 July 2004.

92 See, for example, Case 95/364/EC Brussels National Airport, Commission decision of 28 June 1995, OJ 1995 L 216/8 (Brussels National Airport ).

93 See, for example, Case IV/28.841 ABG/Oil Companies, Commission decision of 19 April 1977, OJ 1977 L 117/1.

94 Post Danmark I, paragraph 30: ‘The fact that the practice of a dominant undertaking may, like the pricing policy in issue in the main proceedings, be described as ‘price discrimination', that is to say, charging different customers or different classes of customers different prices for goods or services whose costs are the same or, conversely, charging a single price to customers for whom supply costs differ, cannot of itself suggest that there exists an exclusionary abuse.'

95 See, for example, press release of 5 March 2014, ‘Commission fines Romanian Power Exchange OPCOM for discriminating against EU electricity traders', IP/14/214. In that case, the Commission found that OPCOM had wrongfully discriminated against electricity traders from outside Romania by requiring them to have a Romanian VAT registration for accessing the spot electricity markets. Through this provision, OPCOM managed to impose a competitive disadvantage on electricity traders that were already registered for VAT in other EU Member States.

96 See, for example, United Brands, paragraphs 248-268: the ECJ annulled the Commission's decision that unfair prices had been charged for Chiquita bananas in Germany, Denmark and Benelux since the difference in prices between branded Chiquita bananas and non-branded bananas was not deemed to be excessive.

97 Case COMP/36.568 Scandlines Sverige v. Port of Helsingborg, [2006] 4 CMLR 1298, paragraph 147.

98 Articles 7, 8, 23 and 24 of Regulation 1/2003 respectively. Interim measures can only be imposed where: (1) there is a prima facie infringement of Article 102 TFEU; (2) there is urgency due to the risks of serious and irreparable damage to competition; (3) damage is considered ‘irreparable'; and (4) the balancing exercise between the public interest and the harm caused weighs in favour of the interim measure.

99 Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No. 1/2003 (the Fining Guidelines), OJ C 210, 1 September 2006.

100 Case COMP/E-1/38.113 Prokent-Tomra [2008] OJ C219.

101 Case COMP/C-3 /37.990 Intel, Commission decision of 13 May 2009.

102 See also Frances Dethmers and Heleen Engelen, ‘Fines under article 102 of the Treaty on the Functioning of the European Union', ECLR, 2011, issue 2, pp. 86 and 88; and Bo Vesterdorf, ‘Article 102 TFEU and sanctions: appropriate when?' (supra) for criticism of the trend of higher fines, in particular considering the lack of legal certainty in the concepts of both abuse and dominance.

103 Article 23(1) of Regulation 1/2003.

104 Article 24(1) of Regulation 1/2003. These can amount to 5 per cent of an undertaking's average daily turnover.

105 See Article 5(4) TFEU; and Case C-441/07 P, Commission v. Alrosa, judgment of 29 June 2010, ECLI:EU:C:2010:377 (Alrosa), paragraph 36; see also Commission Notice on Best Practices for the Conduct of Proceedings concerning Article 101 and 102 TFEU, paragraph 115: the Commission has undertaken to verify ‘that the commitments address the identified competition concerns and that the commitments offered do not manifestly go beyond what is necessary to address these concerns'. The ECJ has confirmed that these principles apply both to remedies imposed under Article 7 and remedies voluntarily offered under Article 9. See Alrosa (supra), paragraph 36.

106 Case T-24/90, Automec v. Commission, judgment of 18 September 1992, ECLI:EU:T:1992:97, paragraph 52; Case T-167/08, Microsoft v. Commission, judgment of 27 June 2012, ECLI:EU:T:2012:323, paragraph 95; Case T-69/89, RTE v. Commission, judgment of 10 July 1991, ECLI:EU:T:1991:39, paragraph 98.

107 This is evident from the text of Article 7 of Regulation 1/2003: ‘Structural remedies can only be imposed either where there is no equally effective behavioural remedy or where any equally effective remedy would be more burdensome for the undertaking concerned than the structural remedy.'

108 See Commercial Solvents, paragraph 45.

109 See Case 238/87, Volvo v. Erik Veng (UK), judgment of 5 October 1988, ECLI:EU:C:1988:477.

110 See Case COMP/38.233 Wanadoo, Commission decision of 16 July 2003.

111 See, for example, Magill: certain broadcasting companies were forced to make available their TV listings and to permit their reproduction subject to payment of reasonable royalties.

112 See, for example, Case COMP/34.579 MasterCard, Commission decision of 19 December 2007, and Case COMP/36.518 EuroCommerce, Commission decision of 19 December 2007.

113 Case COMP/37.990 Intel, Commission decision of 13 May 2009.

114 Recital 12 of Regulation 1/2003.

115 See DG COMP Competition Policy Newsletter (2007), No. 1, pp. 23-34.

116 Case COMP/39.315 ENI, Commission decision of 29 September 2010.

117 Ibid., paragraph 89.

118 Commission Regulation EC No. 773/2004 of April 2004 on the conduct of proceedings pursuant to Articles 81 and 82 of the EC Treaty.

119 DG Competition Antitrust Manual of Procedures: Internal DG Competition working documents on procedures for the application of Articles 101 and 102 TFEU (the Procedure Manual), March 2012.

120 Privilege applies only to independent external counsel; advice given by in-house lawyers is excluded from the scope of legal professional privilege. See Case C-550/07 P, Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v. Commission, judgment of 14 September 2010, ECLI:EU:C:2010:512.

121 Case AT.39759 - ARA foreclosure, Commission decision of 20 September 2016.

122 Private enforcement is facilitated and encouraged by Recital 7, Article 6, and Article 15 of Regulation 1/2003. For commentary, see, for example, C Cook, ‘Private Enforcement of Competition Law in Member State Courts: Experience to Date and the Path Ahead' (2008) 4(2) Competition Policy International; M Siragusa, EU Competition Law - Cartels and Horizontal Agreements, (Leuven Claeys & Casteels 2007), paragraph 4.226 et seq.; J Temple Lang, ‘Commitment Decisions and Settlements with Antitrust Authorities and Private Parties Under European Antitrust Law', Fordham Antitrust Conference, September (2005).

123 Proposal for a Directive of the European Parliament and of 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, 11 June 2013.

124 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, C(2013) 3440, 11 June 2013; and Commission Staff Working Document - Practical Guide 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, SWD(2013) 205, 11 June 2013.

125 Commission Recommendation on common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations of rights granted under Union Law, C(2013) 3539/3, 11 June 2013; and Commission communication ‘Towards a European Horizontal Framework for Collective Redress', COM(2013) 401/2, 11 June 2013.