Yearbook of European Law - Vol. 10

By Francis Geoffrey Jacobs | Go to book overview

Competition Law*

IAN S. FORRESTER and CHRISTOPHER NORALL


I. Introduction

It is likely that 1990 will be regarded as a watershed year in the history of EC competition law, in that from 21 September the Commission had the duty of passing upon the legality of major mergers. This was indeed a most important development, but 1990 was significant in other respects as well, in that at the end of the year it was possible to detect a new set of enforcement priorities which are significantly different to what could be called the traditional topics of competition enforcement in the Community.

Competition law at the end of the 1980s could be said to operate on two wavelengths. The first, more familiar, rather consistent, slow-moving, and stable, relates to the classic preoccupations of competition law enforcers from 1962 to 1985, namely distribution, parallel trade, vertical licensing of industrial property rights, occasional dramas concerning the abuse of monopoly power, and occasional trust-busting investigation of price fixing cartels in mature industries. The second topic is less easy to delineate and has greater potency for the future: how to make Community industry more competitive.

The decisions taken in 1990 deal with each of the two strands of competition law we have identified. The Commission took eleven formal decisions (if Soda Ash is treated as a single case), of which five dealt with co-operation between enterprises in the cause of more effective competition ( Alcatel Espace/ANT, Metal Box/Elopak, Konsortium 900, Cekacan, and KSG/Goulds/ITT). Three of these decisions were traditional in reasoning, two were radical. One decision in effect granted negative clearance under Article 86 to a merger ( Metaleurop). One decision challenged the Spanish law which hinders private courier services, one refrained from imposing a fine in respect of an alleged export ban ( Bayer Dental), one dealt with the motor car service trade ( D'Ieteren Motor Oil Recommendation) and one dealt with the rights to market a new style of beer ( Whithread/Moosehead). An entire issue of the Official Journal was devoted to the Soda Ash case, consisting of five companion decisions: unprecedentedly large fines, of 30,000,000 ECU and 17,000,000 ECU were imposed on Solvay and ICI respectively for breaches of both Article 85 and Article 86 in marketing soda ash under a long-standing market-sharing agreement, aggravated by fidelity rebates which excluded competitors from getting orders. Chemische Fabrik Kalk was also fined

____________________
*
Ian S. Forrester and Christopher Norall, 1991, Q.C. Scots Bar and Member of the New York Bar, respectively.

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