Direito da Concorr

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Direito da Concorrência na União Européia
Programa Jean Monet

• Prof. Rafael Pinho Senra de Morais
• FGV Direito Rio

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Programa

• I Revisão e Introdução
• II Mercado Relevante e Poder de Mercado
• III Defesa da eficiência econômica
• IV Atos de Concentração
• V Práticas Anticompetitivas

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Antitruste na Europa

• Foco no excedente do Consumidor, mas aceitam-se
  argumentos pró-eficiência.
• Disposições anti-truste já estavam nos Tratado de
  criação da própria EEC e EC.
• Preocupação (adicional e primordial) com
  integração do mercado comum.
• Artigos 81 (85, 101) e 82 (86, 102)

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• Article 81
• 1. The following shall be prohibited as
  incompatible with the common market all
  agreements between undertakings, decisions by
  associations of undertakings and concerted
  practices which may affect trade between Member
  States and which have as their object or effect
  the prevention, restriction or distortion of
  competition within the common market, and in
  particular those which
• (a) directly or indirectly fix purchase or
  selling prices or any other trading conditions
• (b) limit or control production, markets,
  technical development, or investment
• (c) share markets or sources of supply
• (d) apply dissimilar conditions to equivalent
  transactions with other trading parties, thereby
  placing them at a competitive disadvantage
• (e) make the conclusion of contracts subject to
  acceptance by the other parties of supplementary
  obligations which, by their nature or according
  to commercial usage, have no connection with the
  subject of such contracts.
• 2. Any agreements or decisions prohibited
  pursuant to this article shall be automatically
  void.
• 3. The provisions of paragraph 1 may, however, be
  declared inapplicable in the case of
• - any agreement or category of agreements between
  undertakings,
• - any decision or category of decisions by
  associations of undertakings,
• - any concerted practice or category of concerted
  practices,
• which contributes to improving the production or
  distribution of goods or to promoting technical
  or economic progress, while allowing consumers a
  fair share of the resulting benefit, and which
  does not
• (a) impose on the undertakings concerned
  restrictions which are not indispensable to the
  attainment of these objectives
• (b) afford such undertakings the possibility of
  eliminating competition in respect of a
  substantial part of the products in question.

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• Article 82
• Any abuse by one or more undertakings of a
  dominant position within the common market or in
  a substantial part of it shall be prohibited as
  incompatible with the common market in so far as
  it may affect trade between Member States.
• Such abuse may, in particular, consist in
• (a) directly or indirectly imposing unfair
  purchase or selling prices or other unfair
  trading conditions
• (b) limiting production, markets or technical
  development to the prejudice of consumers
• (c) applying dissimilar conditions to equivalent
  transactions with other trading parties, thereby
  placing them at a competitive disadvantage
• (d) making the conclusion of contracts subject to
  acceptance by the other parties of supplementary
  obligations which, by their nature or according
  to commercial usage, have no connection with the
  subject of such contracts.

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CADE Abuso do Poder Econômico

• Art. 20. Constituem infração da ordem econômica,
  independentemente de culpa, os atos sob qualquer
  forma manifestados, que tenham por objeto ou
  possam produzir os seguintes efeitos, ainda que
  não sejam alcançados
• I - limitar, falsear, ou de qualquer forma
  prejudicar a livre concorrência ou a livre
  iniciativa
• II - dominar mercado relevante de bens ou
  serviços
• III - aumentar arbitrariamente os lucros
• IV - exercer de forma abusiva posição dominante.
• 1º A conquista de mercado resultante de
  processo natural fundado na maior eficiência de
  agente econômico em relação a seus competidores
  não caracteriza o ilícito previsto no inciso II.
•         2º Ocorre posição dominante quando uma
  empresa ou grupo de empresas controla parcela
  substancial de mercado relevante, como
  fornecedor, intermediário, adquirente ou
  financiador de um produto, serviço ou tecnologia
  a ele relativa.
•         3º A posição dominante a que se refere
  o parágrafo anterior é presumida quando a empresa
  ou grupo de empresas controla 20 (vinte por
  cento) de mercado relevante, podendo este
  percentual ser alterado pelo Cade para setores
  específicos da economia.(Redação dada pela Lei nº
  9.069, de 29.6.95)

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Introdução

• Article 82 of the Treaty establishing the
  European Community (Article 82) prohibits
  abuses of a dominant position. In accordance with
  the case-law, it is not in itself illegal for an
  undertaking to be in a dominant position
• and such a dominant undertaking is entitled to
  compete on the merits.
• However, the undertaking concerned has a special
  responsibility not to allow its conduct to impair
  genuine undistorted competition on the common
  market.
• Article 82 is the legal basis for a crucial
  component of competition policy and its effective
  enforcement helps markets to work better for the
  benefit of businesses and consumers.
• This is particularly important in the context of
  the wider objective of achieving an integrated
  internal market.

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Art. 82

• Article 82 applies to undertakings which hold a
  dominant position on one or more relevant
  markets.
• Construção doutrinária collective dominance
• The guidelines only relates to abuses committed
  by an undertaking holding a single dominant
  position.
• ensuring that undertakings which hold a dominant
  position do not exclude their competitors by
  other means than competing on the merits of the
  products or services
• protecting an effective competitive process and
  not simply protecting competitors.

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Art. 82

• Casos mais comuns
• Exclusive dealing (ED)
• Tying and bundling
• Predation
• Refusal to supply and margin squeeze
• Casos particulares
• Excessively high price
• Certain behaviour that undermines the efforts to
  achieve an integrated internal market

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Dominance

• ... behave to an appreciable extent
  independently...
• ... capable of profitably increasing prices
  above the competitive level for a significant
  period of time...
• constraints imposed by the existing supplies
  from, and the position on the market of, actual
  competitors (the market position of the dominant
  undertaking and its competitors)
• constraints imposed by the credible threat of
  future expansion by actual competitors or entry
  by potential competitors (expansion and entry)
• constraints imposed by the bargaining strength of
  the undertakings customers.

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Foreclosure

• the position of the dominant undertaking
• the conditions on the relevant market
• the position of the dominant undertakings
  competitors
• the position of the customers or input suppliers
• Possible selectivity of the conduct
• the extent of the allegedly abusive conduct
• possible evidence of actual foreclosure
• direct evidence of any exclusionary strategy

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Efficiencies

• the efficiencies have been, or are likely to be,
  realised as a result of the conduct. They may,
  for example, include technical improvements in
  the quality of goods, or a reduction in the cost
  of production or distribution
• the conduct is indispensable to the realisation
  of those efficiencies there must be no less
  anti-competitive alternatives to the conduct that
  are capable of producing the same efficiencies
• the likely efficiencies brought about by the
  conduct outweigh any likely negative effects on
  competition and consumer welfare in the affected
  markets
• the conduct does not eliminate effective
  competition, by removing all or most existing
  sources of actual or potential competition.
  Rivalry between undertakings is an essential
  driver of economic efficiency, including dynamic
  efficiencies in the form of innovation. In its
  absence the dominant undertaking will lack
  adequate incentives to continue to create and
  pass on efficiency gains. Where there is no
  residual competition and no foreseeable threat of
  entry, the protection of rivalry and the
  competitive process outweighs possible efficiency
  gains. In the Commissions view, exclusionary
  conduct which maintains, creates or strengthens a
  market position approaching that of a monopoly
  can normally not be justified on the grounds that
  it also creates efficiency gains.

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Exclusive dealing (ED) FTC

• Early important decisions involving exclusive
  dealing arrangements
• Standard Fashion Co. v. Magrane-Houston Co. 258
  U.S. 346 (1922)
• Standard Oil Co. of California v. U.S. 337 US
  293 (1949)
• U.S. v. United Shoe Machinery Corporation 347
  U.S. 521 (1954).
• Recent cases
• Scholler v. Commission, European Court Case
  T-9/95, U.S. v. Microsoft (1995 Consent Decree)
• U.S. v. Dentsply 399 F.3d 181 (2001)
• Conwood v. United States Tobacco 290 F.3d 768
  (2002)
• U.S. v. Visa USA 344 F.3d 229 (2003).

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Exclusive dealing (ED)

• Um dos argumentos pró é o de que facilitaria
  investimento.
• protecting the relation-specic investment of the
  exclusive-right holder against opportunistic
  hold-up (think for instance of a manufacturer
  that invests in order to improve the services of
  a common retailer, thereby failing to entirely
  appropriate the benets of its investment).
• O argumento contra é que barra competidor mais
  eficiente (foreclosure)
• Fumagalli, Motta and Ronde (2009) esses dois
  efeitos estão ligados e não devem ser somados.

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USA X Europe

• Currently, under US case-law the procompetitive
  rationale of exclusive contracts seems to
  prevail it is very infrequent that firms endowed
  with monopoly power are found to have infringed
  the Sherman Act due to the use of exclusive
  clauses.
• On the contrary, in Europe it is the exclusionary
  effects of exclusive deals which are emphasised
  in the EU exclusive contracts by dominant firms
  are ruled out by a de facto per se prohibition
  rule, and efficiency effects are usually not even
  considered in competition policy cases.

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Mudanças recentes gt convergência

• Both in the US and in the EU the policy towards
  monopolization or abusive practices is being
  reconsidered!
• U.S. Courts take the anti-competitive effects of
  exclusive dealing more seriously in several
  recent cases.
• The European Commission has recently signalled
  its intention to move towards a rule of reason
  approach. See the recent Guidance on the
  Commission's Enforcement Priorities in Applying
  Article 82 EC Treaty to Abusive Exclusionary
  Conduct by Dominant Undertakings, December 2008.

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Fumagalli, Motta and Ronde (2009)

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

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ED

• Exclusive purchasing requirements
• Rebates
• Retroactive
• Incremental
• Exclusive stocking requirements

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Tying and Bundling

• Tying usually refers to situations where
  customers that purchase one product (the tying
  product) are required also to purchase another
  product from the dominant undertaking (the tied
  product). Tying can take place on a technical or
  contractual basis.
• Bundling usually refers to the way products are
  offered and priced by the dominant undertaking.
  In the case of pure bundling the products are
  only sold jointly in fixed proportions. In the
  case of mixed bundling, often referred to as a
  multiproduct rebate, the products are also made
  available separately, but the sum of the prices
  when sold separately is higher than the bundled
  price.

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Diferenças Tying X Bundling

• "the key difference between tying and bundling
  is that tying involves the conditioning of the
  sale of one product on the purchase of the
  other." United States v. Eastman Kodak Co.
  (1994).
• Indeed, the Supreme Court has stated that the
  "common core" of unlawful tying arrangements "is
  the forced purchase of a second distinct
  commodity." Times-Picayune Publ Co. v. United
  States (1953)

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http//www.metrocorpcounsel.com

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

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• Editor In what circumstances would bundling be
  illegal?
• Weinschel These are hard cases because they deal
  with the difference between "hard competition"
  and "exclusion." Violations have been found where
  there is significant market power in one of the
  products in the bundle and competition is
  prevented (not just made difficult) with respect
  to one or more other products. An example is
  SmithKline Corp. v. Eli Lilly Co., 575 F.2d
  1056 (3rd Cir. 1978). Lilly had two leading
  antibiotics that were patented and unique. Lilly
  also sold hospitals other antibiotics for which
  there were substitutes. Lilly offered a
  discounted bundle that included the two unique
  Lilly antibiotics and other Lilly antibiotics.
  There were very strong economic incentives to
  take the bundle and earn the discounts.
  SmithKline, which sold a competing antibiotic,
  argued that the discount structure penalized
  hospitals for dealing with SmithKline and showed
  that it could not remain profitable in the long
  run in products that competed with the bundled
  product. The Third Circuit held that Lilly
  violated Section 2 of the Sherman Act in
  attempting to extend and entrenching its monopoly
  in antibiotics.
• Another case that comes to mind, also from the
  Third Circuit, is the more recent LePage's Inc.
  v. 3M , 324 F.2d 141 (3rd Cir. 2003). There, 3M,
  with admitted monopoly power in the brand name
  market, was faced with competition by LePage's, a
  seller of private label tape. 3M offered
  discounts to customers buying a broad bundle of
  its products. LePage's lost significant sales to
  3M and won a jury verdict. The majority seemed
  comfortable that the evidence in the record was
  enough to support a verdict that 3M had gone too
  far even though there was no allegation that 3M
  sold below cost. The majority seemed troubled by
  the fact that 3M tailored its discounts to target
  LePage's major customers. Analytically, this
  shouldn't be determinative, but it is one of
  those facts that could lead to a conclusion that
  a company had gone too far and had acted in an
  "exclusionary" manner. The dissent (including
  now- Justice Alito) was not so comfortable,
  because of the absence of proof that 3M sold
  below cost or that LePage's was unable to meet
  3M's competition.

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• Editor What are some of the characteristics of
  the cases where bundling has not been found
  illegal?
• Weinschel A leading case cited for the
  proposition that bundling is legal if competition
  can still occur is Ortho Diagnostic Sys., Inc. v.
  Abbott Labs, Inc., 920 F.Supp. 455 (S.D.N.Y.
  1996). Judge Kaplan concluded in a scholarly
  opinion that a bundle did not violate the Sherman
  Act in the absence of pricing that prevented
  sales by an equally efficient competitor and in
  the absence of proof that there was no viable
  economic alternative to the bundle for
  purchasers.
• Another case that came to a similar conclusion
  was Virgin Atlantic Airways Ltd. v. British
  Airways PLC , 257 F.2d 256 (3rd Cir. 2001).
  Virgin sued British Airways for offering volume
  discounts to travel agents and some corporate
  customers. Some were on specific routes where BA
  faced competition from Virgin. Virgin alleged
  that BA lowered the prices on the competitive
  routes and allegedly subsidized those lower
  prices with monopoly profits on the
  noncompetitive routes. The court threw out the
  case distinguishing SmithKline because there was
  no proof that British Airways' pricing was below
  cost or that consumers were harmed. The Second
  Circuit also followed Supreme Court precedent and
  rejected the theory of "monopoly leverage" -
  gaining an advantage in one market through a
  dominant position in another - as a cause of
  action under the Sherman Act. See Spectrum
  Sports, Inc., v. McQuillan , 506 U.S. 447 (1993)
  see also, Verizon Communications Inc. v. Law
  Offices of Curtis V. Trinko, 540 U.S, 398 (2004).

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Programas de fidelidade

• Editor What about loyalty discounts?
• Weinschel Loyalty discounts are inducements to
  customers to buy more and thereby earn a lower
  price. Even if the seller has a substantial
  market share, and even if the discounts are below
  cost, it must be shown that the net effect of the
  discount program is to exclude competition and
  that the seller would be able to recoup its
  losses through monopoly pricing after all
  competition has been eliminated. It is a very
  difficult case for the plaintiff. The antitrust
  laws are designed to encourage sellers to lower
  prices and take sales away from competitors
• An example here is Concord Boat Corp. v.
  Brunswick Corp., 207 F.2d 1039 (8th Cir. 2000).
  This case is often discussed as a bundling case
  but in reality it is about loyalty or market
  share discounts. Brunswick sold marine engines.
  Plaintiffs were boat manufacturer-customers of
  Brunswick. Brunswick offered market share
  discounts of 3 to boat builders and dealers
  buying 70 percent of their engine requirements
  from Brunswick, as well as other inducements to
  increase purchases. The evidence was that
  Brunswick did not sell below cost. There was also
  a failure of proof that the programs themselves
  compelled customers to buy from Brunswick. There
  was also testimony on the difficulty other engine
  manufacturers faced in the marketplace and a
  general lack of evidentiary connection between
  the discounts and rivals' lost sales. Given these
  circumstances, there was no antitrust violation.
• Editor I understand that the EC treaty bans
  loyalty discounts.
• Weinschel The EC takes a different approach. The
  EC has taken the position that a dominant seller
  that gains a competitive edge by using loyalty
  discounts or bundled discounts can thereby
  "abuse" its dominant position. The EC believes it
  is necessary to protect smaller competitors (even
  if they are less efficient) in order to protect
  the competitive process. It is similar to the
  offense of "monopoly leveraging," which has been
  rejected here. The EC appear to equate harm to a
  competitor as equal to harm to competition. This
  is quite inconsistent with U.S, antitrust
  principles.

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Predation

• Sacrifice!
• Harder to argue efficiency gains...
• Equally efficient producer argument
• It may be easier for the dominant undertaking to
  engage in predatory conduct if it selectively
  targets specific customers with low prices, as
  this will limit the losses incurred by the
  dominant undertaking.
• It is less likely that the dominant undertaking
  engages in predatory conduct if the conduct
  concerns a low price applied generally for a long
  period of time.

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Refusal to deal and margin squeeze

• Vertical integrated entity...
• the refusal relates to a product or service that
  is objectively necessary to be able to compete
  effectively on a downstream market
• the refusal is likely to lead to the elimination
  of effective competition on the downstream
  market and
• the refusal is likely to lead to consumer harm.