Yearbook of European Law - Vol. 4

By A. Barav; D. A. Wyatt | Go to book overview

Competition Law*

IAN S. FORRESTER and CHRISTOPHER NORALL The most interesting competition law developments in 1989 did not consist of Commission decisions. More important were the adoption in late December of the much-discussed merger regulation, whose entry into force on 21 September 1990 will mean a major challenge for the Commission's capacity to respond rapidly and practically to requests for its blessing upon major mergers; and the judgments of the European Court in Dow, Solvay, Hoechst, and Orkem, which constituted valuable, though not perfectly clear, statements about the powers of Commission inspectors when conducting on-the-spot investigations, and the rights to procedural due process of the companies under investigation.

In 1989 the Commission published only ten formal decisions under Articles 85, one of the lowest numbers of recent years. The number of exemptions was unusually high, at six ( Dutch Banks, UIP, Sulphuric Acid Pool, German television films, TEKO, Concordato Incendio). Condemnations were issued in three cases, in two of which fines were imposed ( Welded Steel Mesh and Bayo-n-ox), and one of which concerned agricultural trade ( Sugar Beet). Negative clearance was granted to APB and was combined with an exemption in Dutch Banks. There was no 'old-fashioned' export ban case although Bayo-n-ox involved an alleged attempt to deter parallel exports; two cases involving the contractual imposition of obstacles to cross-border trade were closed with a press release ( Volkswagen and Akzo Coatings). Some of the exemptions, notably in the financial sector, were remarkable in that they seemed to authorize as pro-competitive a level of cooperation between competitors which in most industries might have been price-fixing. There was no published decision based solely on Article 86. There was an important decision under Article 90 concerning the extent to which the State can hinder the activities of a competing private sector enterprise ( Dutch Courier Services). 382 cases were closed, either because agreements were no longer in force or because they were of trivial importance. There were fortysix comfort letters advising the parties that the Commission did not plan to challenge their arrangements. At the end of the year, there were 3,239 pending cases, of which 2,669 were notifications, 359 were complaints and 211 were own-initiative proceedings.

The topics covered by the Commission's decisions to some extent mirror the preoccupations of antitrust authorities in the 1990s:

____________________
*
© Ian S. Forrester and Christopher Norall, 1990, Q.C. Scots Bar and Member, New York Bar, respectively.

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