競争法ブログ～ヒロシの独り言～

公正競争阻害性

Sat, 25 Feb 2012 19:35:50 +0900

（金井、川濱、泉水　独占禁止法第３版（２０１０）　弘文堂）より

１．自由競争の減殺

　・競争回避型：再販売価格の拘束、販売地域の制限、販売方法の制限

　・競争排除型：略奪的価格設定、排他条件付取引

２．競争手段の不公正

３．自由競争基盤の侵害

　・優越的地位の濫用

通説：１９８２年　独禁法研究会　「不公正な取引方法に関する基本的な考え方」

EUの企業結合審査手続

Sat, 25 Feb 2012 19:22:07 +0900

1. Notification

2.Phase1 Initial examination

· Detailed appraisal via: request for
information, interviews, inspections carried
out by the competent Authorities of the
Member States and the Commission
· Member States can request referral within
15 working days of notification.

3.Phase1 decision

· 6(1)a : the concentration does not fall within
the scope of the Merger Regulation
· 6(1)b : the concentration does not raise
serious doubts as to its compatibility with
the common market: approval
· 6(1)c : the concentration raises serious
doubts: phase 2 of procedure

4.Phase 2 Initation of proceedings

· Detailed appraisal via: request for information,
interviews, inspections carried out by the
competent Authorities of the Member States
and the Commission
· Declaration of incompatibility is preceded by
the issuing of a statement of objections, with a
right for the parties to access the file and to
request a formal oral hearing
· Advisory Committee of Member States:
meeting and delivery of opinion

5.Phase2 final decision

8(1): approval in case of compatibility with the
common market
· 8(2): approval with conditions and obligations
rendering the concentration compatible with the
common market
· 8 (3):prohibition in case of incompatibility with
the common market
· 8(4): dissolution of the merger in case of
premature implementation or implementation in
breach of a condition for clearance
· 8(5): interim measures
· 8(6): revocation of a clearance decision in case

6Possibility: Review by the European Court
of First Instance and ultimately by the
European Court of Justicef incorrect information or breach of obligation

http://ec.europa.eu/competition/mergers/legislation/merger_compilation.pdf

EU blocks proposed merger between DB and NYSE

Sun, 19 Feb 2012 09:17:59 +0900

Brussels, 01 February 2012 - The European Commission has prohibited, on the basis of the EU Merger Regulation, the proposed merger between Deutsche Börse and NYSE Euronext, as it would have resulted in a quasi-monopoly in the area of European financial derivatives traded globally on exchanges. Together, the two exchanges control more than 90% of global trade in these products. The Commission's investigation showed that new competitors would be unlikely to enter the market successfully enough to pose a credible competitive threat to the merged company. The companies offered, in particular, to sell certain assets and to provide access to their clearinghouse for some categories of new contracts, but overall, the commitments were inadequate to solve the identified competition concerns.

Commission Vice President in charge of competition policy Joaquín Almunia said: "The merger between Deutsche Börse and NYSE Euronext would have led to a near-monopoly in European financial derivatives worldwide. These markets are at the heart of the financial system and it is crucial for the whole European economy that they remain competitive. We tried to find a solution, but the remedies offered fell far short of resolving the concerns."

Eurex, operated by Deutsche Börse, and Liffe, operated by NYSE Euronext, are the two largest exchanges in the world for financial derivatives based on European underlyings. They compete head-to-head and are each other's closest competitors.

The proposed merger would have eliminated this global competition and created a quasi-monopoly in a number of asset classes, leading to significant harm to derivatives users and the European economy as a whole. With no effective competitive constraint left in the market, the benefits of price competition would be taken away from customers. There would also be less innovation in an area where a competitive market is vital for both SMEs and larger firms.

http://europa.eu/rapid/pressReleasesAction.do?reference=IP/12/94&format=HTML&aged=0&language=EN&guiLanguage=en

merger guidelines

Sun, 19 Feb 2012 09:00:33 +0900

○　horizontal merger guideline

　・　ＵＳＡ　http://www.ftc.gov/os/2010/08/100819hmg.pdf　(19 August,2010)

・ EU http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52004XC0205(02):EN:HTML

(5 February.2004)

・　Japan http://www.jftc.go.jp/ma/kigyo-gl.pdf (1 July. 2011)

the abuse of dominant position in EU

Sat, 18 Feb 2012 23:08:54 +0900

１. dominant position

the Hoffmann-LaRoche case (85/76 of 13 February 1979),

The dominant position referred to in this article relates to a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the revalent market by giving it the power to behave to an appreciable extent independently of its competitiors, customers and ultimaltely of consumers.

2. the abuse

Article 82 of the Treaty does not define dominance, but merely gives examples of "abusive practice":

imposing unfair prices or other unfair trading conditions,
limiting production, markets or technical development to the prejudice of consumers,
applying dissimilar conditions to equivalent transactions with other trading parties,
imposing supplementary obligations which have no connection with the purpose of the contract.

競争の実質的制限とは

Sat, 18 Feb 2012 22:32:59 +0900

（金井、川濱、泉水　独占禁止法第３版（２０１０）　弘文堂）より

通説：「ある程度自由に価格、品質、数量、その他各般の条件を左右することによって、市場を支配することができる状態をもたらすこと」ができる力を市場支配力と呼び、

競争の実施的制限とは、市場支配力を形成、維持、強化すること。

参考：東宝・新東宝事件・東京高判昭２８・１２・７

　　　　ＮＴＴ東日本事件・東京高判平２１・５・２９