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The dogmatic of article 101 TFEU and information exchanges

por Baño Fos, José María

Libro
ISBN: 9788498903461
Madrid Iustel 2018
Serie: Monografías

Information exchanges are at the heart of most European and national investigations nowadays. In fact, they cover a substantive part of the Commission’s Guidelines on Horizontal Cooperation. In bureaucratic terms, they are a “policy priority”.
However, the development of such an infringement has come at the expense of legal certainty as it implies, de facto, redrawing the red lines that safeguard Article 101 TFEU. By punishing this behavior as a “self-standing” infringement, the area of protection of Article 101 TFEU is broadened. It is no longer necessary to show the existence of a cartel, it suffices to show that the exchange (or disclosure) could most logically end up in a cartel, for the practice to be prohibited and punished.
This raises several questions that this book seeks to answer: is there an economic basis for such a conclusion? If so, does this infringement fit within the wording and purpose of Article 101 TFEU? And ultimately, as with any other infringement, how can we avoid committing type I mistakes while ensuring the effectivity of Article 101 TFEU?
Addressed towards practitioners and scholars this book provides a useful toolkit for analyzing information exchanges and their likelihood to carry out a fine while, at the same time, develops a systematic analysis on the legal nature of Article 101 TFEU.

Tabla de Contenidos

I. INTRODUCTION
A. The need for a dogmatic exegesis of Article 101 TFEU
B. The structure of this book
C. Our submissions
II. A LITERAL AND SYSTEMATIC INTERPRETATION OF ARTICLE 101 TFEU
A. Article 101 TFEU: An imperative but general clause
B. Article 101 TFEU: the distinction between administrative sanctions and administrative measures
C. Article 23.2 of Regulation 1/2003: a forwarding provision
D. Article 101 TFEU under the light of Article 2.2 of Regulation 2988/95: an administrative irregularity not an administrative offence/sanction
E. A comparative law check: the U.S. Distinction between section 1 of the Sherman Act and section 5 of the FTC Act
III. A HISTORICAL INTERPRETATION OF ARTICLE 101 TFEU
A. The drafting of Article 101 TFEU (85 TEC): a general clause aimed at dismantling «public cartels» in Europe
B. Regulation 17/62: a missed opportunity to develop detailed administrative rules setting out the prohibited (and finable) conducts
C. The Consten judgment: the beginning of the theoretical confusion
D. Regulation 1/2003: a missed opportunity to conceptualize the system and develop adequate black letter rules
IV. INFORMATION EXCHANGES: A USEFUL BENCHMARK FOR ANY DOGMATIC CONSTRUCTION OF ARTICLE 101 TFEU
V. THE ECONOMICS OF INFORMATION EXCHANGES
A. The cons: how do information exchanges «facilitate» collusion?
B. What type of information facilitates collusion?
C. When do information exchanges facilitate collusion? The structural elements
D. The pros: How can information exchanges improve the functioning of a market? Efficient exchanges of information
E. Summary
VI. INFORMATION EXCHANGES: ITS DIFFICULT POSITION WITHIN THE TRADITIONAL CATEGORIES OF ARTICLE 101 TFEU
A. The historical evolution of information exchanges under the Commission’s Notices and Guidelines
B. T-Mobile, Bananas and the prohibition against hard core cartels
C. The evolution of the concept of concerted practices jointly with that of information exchanges and why they have become almost synonyms in cartel cases.
D. Information exchanges under the light of Article 101 TFEU’s duality of consequences: a review of some national examples.
E. Information exchanges under Article 101.3 TFEU
VII. A DOGMATIC (CRIMINAL LAW) FRAMEWORK FOR A COHERENT APPLICATION OF MONETARY FINES AS A RESULT OF THE INFRINGEMENT OF ARTICLE 101 TFEU (VIA REGULATION 1/2003
A. Competition as a legally protected value or «Rechtsgutsbegriff», understanding supra-individual values deserving legal protection and their mechanisms of protection
B. Competition law infringements as a continuum of «endangering» behaviors, the usefulness of the distinction between harm and risk
C. The need to move away from a literal interpretation of Article 101 TFEU
D. The limits to the protection of competition: culpability, harm and legality, three key safeguards
VIII. INFORMATION EXCHANGES AND THE DOGMATIC OF ARTICLE 101 TFEU
A. A categorization of information exchanges by reason of their more or less likely harm to competition
B. The feasibility of introducing an invitation to collude doctrine in EU competition law and the importance of the unilateral business explanation
C. The merits of introducing an invitation to collude doctrine: «concertation» and concerted practices under this new approach
D. The way forward: a reform of Regulation 1/2003
IX. CONCLUSION


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Information exchanges are at the heart of most European and national investigations nowadays. In fact, they cover a substantive part of the Commission’s Guidelines on Horizontal Cooperation. In bureaucratic terms, they are a “policy priority”.
However, the development of such an infringement has come at the expense of legal certainty as it implies, de facto, redrawing the red lines that safeguard Article 101 TFEU. By punishing this behavior as a “self-standing” infringement, the area of protection of Article 101 TFEU is broadened. It is no longer necessary to show the existence of a cartel, it suffices to show that the exchange (or disclosure) could most logically end up in a cartel, for the practice to be prohibited and punished.
This raises several questions that this book seeks to answer: is there an economic basis for such a conclusion? If so, does this infringement fit within the wording and purpose of Article 101 TFEU? And ultimately, as with any other infringement, how can we avoid committing type I mistakes while ensuring the effectivity of Article 101 TFEU?
Addressed towards practitioners and scholars this book provides a useful toolkit for analyzing information exchanges and their likelihood to carry out a fine while, at the same time, develops a systematic analysis on the legal nature of Article 101 TFEU.

Tabla de Contenidos

I. INTRODUCTION
A. The need for a dogmatic exegesis of Article 101 TFEU
B. The structure of this book
C. Our submissions
II. A LITERAL AND SYSTEMATIC INTERPRETATION OF ARTICLE 101 TFEU
A. Article 101 TFEU: An imperative but general clause
B. Article 101 TFEU: the distinction between administrative sanctions and administrative measures
C. Article 23.2 of Regulation 1/2003: a forwarding provision
D. Article 101 TFEU under the light of Article 2.2 of Regulation 2988/95: an administrative irregularity not an administrative offence/sanction
E. A comparative law check: the U.S. Distinction between section 1 of the Sherman Act and section 5 of the FTC Act
III. A HISTORICAL INTERPRETATION OF ARTICLE 101 TFEU
A. The drafting of Article 101 TFEU (85 TEC): a general clause aimed at dismantling «public cartels» in Europe
B. Regulation 17/62: a missed opportunity to develop detailed administrative rules setting out the prohibited (and finable) conducts
C. The Consten judgment: the beginning of the theoretical confusion
D. Regulation 1/2003: a missed opportunity to conceptualize the system and develop adequate black letter rules
IV. INFORMATION EXCHANGES: A USEFUL BENCHMARK FOR ANY DOGMATIC CONSTRUCTION OF ARTICLE 101 TFEU
V. THE ECONOMICS OF INFORMATION EXCHANGES
A. The cons: how do information exchanges «facilitate» collusion?
B. What type of information facilitates collusion?
C. When do information exchanges facilitate collusion? The structural elements
D. The pros: How can information exchanges improve the functioning of a market? Efficient exchanges of information
E. Summary
VI. INFORMATION EXCHANGES: ITS DIFFICULT POSITION WITHIN THE TRADITIONAL CATEGORIES OF ARTICLE 101 TFEU
A. The historical evolution of information exchanges under the Commission’s Notices and Guidelines
B. T-Mobile, Bananas and the prohibition against hard core cartels
C. The evolution of the concept of concerted practices jointly with that of information exchanges and why they have become almost synonyms in cartel cases.
D. Information exchanges under the light of Article 101 TFEU’s duality of consequences: a review of some national examples.
E. Information exchanges under Article 101.3 TFEU
VII. A DOGMATIC (CRIMINAL LAW) FRAMEWORK FOR A COHERENT APPLICATION OF MONETARY FINES AS A RESULT OF THE INFRINGEMENT OF ARTICLE 101 TFEU (VIA REGULATION 1/2003
A. Competition as a legally protected value or «Rechtsgutsbegriff», understanding supra-individual values deserving legal protection and their mechanisms of protection
B. Competition law infringements as a continuum of «endangering» behaviors, the usefulness of the distinction between harm and risk
C. The need to move away from a literal interpretation of Article 101 TFEU
D. The limits to the protection of competition: culpability, harm and legality, three key safeguards
VIII. INFORMATION EXCHANGES AND THE DOGMATIC OF ARTICLE 101 TFEU
A. A categorization of information exchanges by reason of their more or less likely harm to competition
B. The feasibility of introducing an invitation to collude doctrine in EU competition law and the importance of the unilateral business explanation
C. The merits of introducing an invitation to collude doctrine: «concertation» and concerted practices under this new approach
D. The way forward: a reform of Regulation 1/2003
IX. CONCLUSION


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