RESTRICTEDWORLD TRADE
ORGANIZATIONWT/WGTCP/W/34
2 March 1998
(98-0810)
Working Group on the Interaction
between Trade and Competition PolicyOriginal: English/French/Spanish
COMMUNICATION FROM THE EUROPEAN COMMUNITY
AND ITS MEMBER STATES
The following communication has been received from the European Community and its
member States with the request that it be circulated to Members.
_______________
Stocktaking of Competiti on Policy and Instruments
The European Community and its member States operate a complex system of Community
and national competition laws with a series of common objectives:  optimal allocation of economic
resources, consumer welfare, efficient provision of services of general economic interest to the public.
In addition, the Community Law promotes the integration of markets into one single market.
This system includes two levels:  a community level (Section I) and a national system in each
member State (Section II).
SECTION I  -  EUROPEAN COMMUNITY COMPETITION INSTRUMENTS
I. EUROPEAN COMPETITION POLICIES, LAWS AND INSTRUMENTS AS THEY
RELATE TO TRADE
European Community Competition law includes a wide range of rules.  For example, in
addition to rules on cartels and abuses of dominant position, the 1957 Treaty of Rome includes
provisions relating to aid granted by Member States or through State resources in any form
whatsoever which distorts or threatens to distort co mpetition by favouring certain undertakings or the
production of certain goods where they affect trade between member States.
This submission will however be limited to "antitrust" law:  restrictive agreements, abuse of
dominant position, mergers having a negative effect on competition, conduct of public authorities
concerning public undertakings or undertakings which have been granted special or exclusive rights.
A. Restrictive Agreements and Abuses of Dominant Position
Article 85 of the Treaty of Rome on unlawful agreements is divided into two parts:  a general
prohibition (paragraph 1) which considers 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, restrictionor distortion of competition within the common market.  These unlawful agreements include priceWT/WGTCP/W/34
Page 2
fixing, limitation or control of production, markets, technical development and investment, tying
arrangements and discrimination.  The second part of Article 85 (paragraph 3) contains a provision
regarding exemptions:  the provisions of paragraph 1 may, under specified conditions1, be declared
inapplicable to individual agreements or to categories of agreements which contribute to improving
the production or distribution of goods or to promoting technical or economic progress.
Article 86, in contrast, contains only a general prohibition.  It concerns any abuse of a
dominant position within the common market.  Such an abuse may in particular consist in imposing
unfair purchase or selling prices, or limiting pro duction, markets or technical development, imposing
discriminatory conditions, tying purchases of  one product to purchase of another, etc.
Article 90:  Articles 85 and 86 apply to all undertakings, including undertakings entrusted
with the operation of services of general economic interest or having the character of a
revenue-producing, in so far as the application of su ch rules does not obstruct the performance, in law
or in fact, of the particular tasks assigned to them.  Special rules govern the general scope ofapplication of European Community competition law in  the fields of agriculture (agreements forming
an integral part of a national market organization or which are necessary for the achievement of the
common agricultural Policy, are excluded from Article 85) and defence (Article 223 of the Treaty of
Rome).
Secondary legislation based on the Treaty of Rome gives the European Commission a leading
role in the application of Community competition rules and extensive powers of investigation.
Regarding the scope of jurisdiction of Community la w, the European Court of Justice has ruled that
the Commission may act against anti-competitive practices which are implemented within the
European market, even if the illegal behaviour is concerned by foreign companies outside Europe.
(1) Complaining to the Commission
Firms can (informally) report any anti-competitive practices to the Commission, especially
those affecting their access to markets.  They can do this either directly or through a professional
organization.  No formalities are required.  Firms may, but are not obliged to, use a standard form.
The right of confidentiality is guaranteed by Article 214 of the Treaty of Rome, which states that
officials and other servants of the Community must not disclose information of the kind covered bythe obligation of professional secrecy, in particular information about undertakings, their business
relations or their costs components.
When firms complain to the Commission, an acknowledgement of receipt is sent to the
complainant, who is subsequently informed of the follow-up given to his complaint and in particular
of the steps that the Commission has taken with regard to the enterprises that are the object of thecomplaint and of representations made to member States.  The Commission must examine the
complainant's factual and legal elements carefully.
The Commission may reject complaints concerning cases in which no significant Community
interest is at stake and which could be settled satisfa ctorily at a national level.  This should lead to an
increase in the number of actions brought in national courts or to national competition and authorities
pursuant to Community competition law.
                                                     
1 These agreements must allow consumers a fair share of the resulting benefit, and must not impose on
the undertakings concerned restrictions which are not indispensable to the attainment of these objectives, or
afford such undertakings the possibility of eliminating competition in respect of a substantial part of the
products in question.WT/WGTCP/W/34
Page 3
When it considers that the elements at its disposal do not warrant a favourable response, the
Commission sets out the reasons to the complainants and specifies a time limit for submission in
writing of any comments they may have (Regulation 99/63 of 25 July 1963, Article 6).  The
Commission may then, if appropriate, terminate the proceedings by a formal decision rejecting the
complaints.
A firm may also intervene in proceedings brought against another firm in the Court of First
Instance or the Court of Justice provided that it can show a sufficient interest.
It should be stressed that Community Law grants foreign firms the same rights as EC firms.
There are no exceptions to this rule.
(2) Direct application of EC law
In addition, parties affected by an anti-competitive practice also have direct recourse either to
the competition authority in some member States, or to national courts.  In the latter case, the
EC Treaty has direct effect in the sense that some  of its competition provisions can be invoked by
private parties before these courts.
(3) Investigations
The Commission has competence both to enforce the prohibitions in Articles 85(1) and 86
and to grant exemptions under Article 85(3).  For this purpose, Council regulations enable the
Commission to conduct investigations and to take decisions.  Where appropriate, proceedings cangive rise to the adoption of interim protective measures, injunctions, fines and penalties.  The
Commission's decisions can be appealed to the Court of First Instance.  That Court's rulings may
themselves be the subject of appeals to the Court of Justice.
The national courts may, in general, issue orders to cease and desist, rule that disputed
agreements are void or adopt interim measures and award damages.  Firms that sue in national courtsfor infringement of Community competition law have access to all the procedures and means of
redress provided by national law.  The means of redress and procedural rules applied by national
courts for infringements of Community Law may not be less favourable than those provided for a
comparable infringement in national law.
Moreover, member States have set up authorities responsible for implementing national
competition law.  Some are empowered to apply both Community competition law and their national
law.  As long as the Commission has not in itiated proceedings under Articles 85 and 86, the
authorities of member States remain competent to apply those provisions (save for granting
exemptions under Article 85(3)).  As a general rule, national competition authorities are competent to
conduct investigations, take decisions and impose penalties.  The administrative rulings of thecompetent authorities are subject to the oversight of national courts.  In some member States, these
authorities have extensive powers of investigation:  first, in many cases the authorities can exercise
their powers of investigation with regard to individuals and impose penalties for failure to cooperate,
including prison sentences for failure to comply w ith a court ruling;  second, they have police powers,
notably the possibility of obtaining search warrants to carry out on-the-spot investigations.
B. Mergers
A merger with a Community dimension (i.e. when the turnover of the companies involved
exceeds certain thresholds) must be notified to the Commission within one week after the conclusion
of the agreement.  If this merger creates or strengthens a dominant position as a result of which
effective competition would be significantly impeded in the common market or in a substantial part ofWT/WGTCP/W/34
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it, it shall be declared incompatible with the common market.  The Commission must take its decision
within one month or, if the merger seems to create or strengthen a dominant position so that effective
competition would be impeded in the common market, or in substantial part of it, within a period of
five months.
A concentration which does not have a Community dimension falls under the national
legislations of the member States.
There are some exceptions to the exclusive jurisdiction of the Commission for cases above
the threshold and of national authorities for cases below those thresholds.
C. Cooperation Between the European Commission and the Authorities of Member States
The relationship between the Community and the me mber States is governed by the principle
of close and constant liaison.  This principle is based on Article 5 of the Treaty of Rome.
(1) Cooperation during investigations
When undertaking investigations into firms or associations of firms, the Commission is
assisted by the authorities of the member States in whose territory the investigations are made.
(2) Cooperation with the authorities of the member States during the proceedings
The most important documents in each case, including information of a confidential nature
obtained by the Commission from firms, are transmitted to national authorities.
These authorities are represented at the oral hearings of firms and they have the right to
express their views upon the procedure.  An advisory committee composed of officials of the member
States is consulted prior to the taking of decisions in individual cases.
(3) Cooperation between national courts and the Commission
The Commission is the administrative authority responsible for the implementation of
competition policy in the Community and for this purpose, acts in the public interest.  National courts,on the other hand, have the task of safeguarding the subjective rights of private individuals in their
relations with one another.  In order to perform this task, they may ask the Commission information of
a procedural nature to enable them to discover whether a certain case is pending before the
Commission, whether a case has been the subject of a notification, or whether the Commission has
officially initiated a procedure.
If necessary, the national courts may also ask the Commission to give an opinion as to how
much time is likely to be required for granting or refusing individual exemption for notified
agreements or practices, so as to be able to determine the conditions for any decision to suspend
proceedings or whether interim measures need to be adopted.
National courts may also consult the Commission on points of law and can obtain information
from the Commission regarding factual data:  statistics, market studies and economic analyses.
Lastly, it is worth mentioning that national c ourts may (and in certain cases, must) request
preliminary rulings to the Court of Justice, before adopting a decision based on an interpretation of
Community Law.  This cooperation has proved to be an important contribution to the integration of
the common market.WT/WGTCP/W/34
Page 5
II. INTERNATIONAL INSTRUMENTS, STANDARDS AND ACTIVITIES REGARDING
TRADE AND COMPETITION POLICY
A. European Community International Cooperation
The EU has concluded various types of agreements with third countries.(1) Agreements on competition
 A key example of the EU's bilateral policy in the field of competition is the agreement
concluded with the United States in 1991.2  When this agreement was signed the parties were facing a
growth in transatlantic transactions and they wished to ensure a more effective and efficient
application of their respective competition rules, es pecially in view of the development of transborder
anti-competitive practices.
The objectives of this agreement are to promote a better coordination of competition policies,
further cooperation where possible (although this is presently limited to the exchange of
non-confidential information and does not permit sharing business information) as well ascoordination of actions and the respect of principles of comity when implementing competition rules
in individual cases.  A new element is the inclusi on of a so-called positive comity instrument whereby
one country can ask the other country to act in those cases where the practice falls within the latter's
jurisdiction but affects the former's important interests.  The EC-US Agreement finally also includes
provisions on the bilateral notification of cases.
The Commission's experience of cooperation with the United States since 1991 has been
positive. The Agreement has undoubtedly proved its worth as a vehicle for sharing views on policy
developments and for cooperation in individual cases.
Most cases of cooperation which can range from merger reviews to cartel investigations, start
by a discussion of the timing of the respective procedures.  Checking when each step in the procedureis likely to be taken is a key element in determining the evolution of future cooperation and the scope
for coordination of enforcement activities.
Further, discussions frequently focus on the product market to determine whether both
competition authorities have arrived at similar conclusions.  These discussions are based on
information which is publicly available.  Under present rules, exchange of confidential informationcan only occur with the agreement of the firms through the grant of a waiver of their confidentiality
rights.  In fact frequent exchanges of information have taken place after such waivers.
Although agreements such as the EC-US one wi ll not suffice to avoid possible conflicting
views, because parties retain independent analysis and decision-making rights, they do contribute to
improving the effectiveness and efficiency of the parties' competition laws and reduce the risks ofdivergent decisions.
The Commission is currently negotiating a bilateral agreement with the Canadian
Government which is similar to the EC-US Agreement.  It is hoped that it will be adopted by the end
of the year.
Finally, the European Union and the United States have entered into negotiations in order to
reach a new agreement which would strengthen the positive comity provisions of the 1991
                                                     
2 Agreement between the European Communities and the Government of the United States of America
regarding the application of their competition laws, OJ  L 95, 27.4.95, corrected by OJ L 131, 15.6.95, pp.38-39.WT/WGTCP/W/34
Page 6
Agreement:  the draft Agreement provides that a competition authority, in cases other than mergers,
will normally defer or suspend its own enforcement activities in respect of certain anti-competitive
activities which occur principally in and are directed principally towards the other Party's territory,
where that other Party intends to address the matt er.  This agreement is expected to be formally
adopted by the United States authorities and the EU Council, having received the opinion of the
European Parliament, by the end of 1997.
(2) General agreements including competition provisions
The Community has concluded general agreements with third countries which include
competition provisions:
- Association agreements:  for example with Israel, Morocco and Tunisia- Partnership agreements:  Russia, Ukraine, Moldova and other CEI countries-  Customs union agreement:  TurkeyNegotiations are also under way with Egypt, Jordan, Lebanon, Algeria, South Africa and a
few South American countries.
(3) Informal cooperation
The European Community has developed informal bilateral relations on competition with
many other countries.
(4) Agreements with other European countries
(a) European Economic Area Agreement
The European Economic Area Agreement which was concluded between the then twelve
members of the EEC and six members of the European Free Trade Association (EFTA) came into
force in 1 January 1994 (three of these countries, Sweden, Austria and Finland have since joined theEuropean Union).  The countries concerned are subject to rules identical to the provisions of the
EC Treaty, secondary legislation, as well as interpretations given by the European Court of Justice.
(b) Europe Agreements
The so-called "Europe Agreements" were concluded  between the European Union and the
Central and Eastern European countries, including the Baltic States.  The rules of competition play an
important role both in the framework of th e Europe Agreements and in the Community's
pre-accession strategy with respect to these countrie s.  In the same logic as applies within the
Community, it is felt that the elimination of trade barriers between countries should be supported by
the establishment of competition law structures in order to ensure that public barriers are not replacedby private barriers with the same effect.
The Europe Agreements provide that the competition system set up between the Community
and the Associated Countries should mirror the system which exists within the Community:  the
national competition laws of these countries and the rules applicable to practices that affect trade
between them and the EU are inspired by the principles of Community competition law.  These
countries are in the process of establishing the necessary structure for a credible enforcement of thoseWT/WGTCP/W/34
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principles and the procedural framework for the cooperation between the two parties.  Remarkable
progress has been achieved.  However, there is still some way to go, especially concerning effective
enforcement.
Under the PHARE programme the Commission provides technical assistance to the
Associated countries in the field of competition to help them develop the necessary legislation, to
establish the necessary structures and to train the officials of the competition authorities.
B. Bilateral Cooperation Agreements Concluded by Member States
Germany and France concluded in 1984 a bilateral agreement on competition (cf. Section II,
contribution from Germany).  It is the only example of such a formal agreement concluded between
two member States.  This agreement supports informal cooperation covering all questions relating to
competition policy.
Germany has also concluded an agreement with the United States in 1976 (cf. Section II).
No other bilateral agreement regarding the application of competition law has been concluded
by a member State.  Cooperation between member States takes place both in the framework of the
European Community's procedures and under the 1995 OECD Recommendation.
Some member States also take an active part in the above-mentioned Commission PHARE
programme.
Finally, informal cooperation plays an important part both among member States and with
third countries.
SECTION II  -  MEMBER STATES' COMPETITION INSTRUMENTS
AUSTRIA
EC competition law is directly enforced by the European Commission, supported by a
department at the Ministry for Economic Affairs.  Moreover Article 85(2) will be directly applied bynational civil courts.
The Cartel Act 1988 in its amended form (Federal Law Gazette No.600/
3 ; CartA 1988)
notably contains provisions about cartels, concerted practices (the latter are regarded as cartels by the
Austrian Cartel Act, the so called "Verhaltenskartelle"), vertical restraints, market - dominating
enterprises and mergers.
I. MAIN PRINCIPLE AND CARTELS
In general, the carrying out of a cartel is prohibited before it has been notified and permitted
and subject to civil and criminal sanctions.  De minimis cartels do not require prior permission but
may, if they don't fulfil the requirements mentioned below, be prohibited on request.
The permission of a cartel can be granted by the Cartel Court (Kartellgericht)4 after in depth
investigation about possible anti-competitive effects of the cartel.  Agreements incompatible with EC
competition law lack this justification in any case.
                                                     
3 Last amendment:  Federal Law Fed.Law Gazette No. 520/95
4 Strictly speaking:  Oberlandesgericht Wien (Vienna Court of Appeals) als KartellgerichtWT/WGTCP/W/34
Page 8
The permission-decision of the Cartel Court is limited to five years at the most.  Once the
cartel is permitted it shall be registered in the cartel register, maintained by the Cartel Court.
II. VERTICAL RESTRAINTS
Vertical restraints shall be notified in advance.  On request, the Cartel Court shall prohibit
such restraints if they lack justification with regard to the national economy or offend against astatutory prohibition or public policy.  1 March 1995 a regulation about these restraints, based on the
Cartel Law entered into force.  It provides that agreements, drafted in compliance with certain EC
group exemption regulations will not be prohibited.
It should be noted that the CartA 1988 treats agreements that tie one or several members of
one, several, or all subsequent economic stages to the same prices (resale price maintenance) not as
vertical restraints but as cartels.
III. EXEMPTION REGULATION
The Federal Minister of Justice determined with a regulation, which forms of cooperation are
not subject to the Cartel Act (within the limits of the interpretation of the laws) and exempted certain
forms in so far as they are apparently important  and necessary for the national economy (Federal Law
Gazette No. 185/1989).
IV. MARKET-DOMINATING ENTERPRISES
On request - e.g. by an enterprise affected by this restriction of competition - the Cartel Court
shall prohibit abuses of a market-dominating position (the listing of examples is the same as in
Article 86).
V. MERGERS
Concentrations, where the aggregate turnover of the undertakings concerned is higher than
ATS 150 million (approx. ECU 10 million) shall be notified in order to inform the Cartel Court;  and
concentrations where the aggregate turnover of the undertakings concerned is higher than
ATS 3,500 million (approx. ECU 230 million) and the turnover of at least two of the undertakings
concerned is higher than ATS 5 million (approx. ECU 330,000) shall, if they create or strengthen a
market-dominating position, be prohibited on request of a legal-party, unless  an improvement of
conditions of competition, making up for the market-dominating position is to be expected or they are
necessary to maintain or increase the competition capacity of the undertakings concerned and justified
with regard to the national economy.
VI. THE PROCEEDING AND THE PARTIES
The Cartel Court is the court of first instance.  Decisions are taken by a senate;  the social
partners are represented in those senates by one assessor each.  The Higher Cartel Court
("Kartellobergericht")
5 has appellate jurisdiction.  The Joint Committee ("Paritätischer Ausschuß" ) -
consisting of representatives of the social partners - is responsible for giving an expert advice,
especially as far as the economic justification of a cartel, the abuse of a dominant position as well asthe competitive situation in various fields of the economy are concerned.  In the performance of their
duties the members are not bound by instructions.  In the proceedings, the Republic of Austria and the
                                                     
5 Strictly speaking:  Oberster Gerichtsho f (Supreme Court) als KartellobergerichtWT/WGTCP/W/34
Page 9
social partners are in a party-position (legal parties) even if they are not applicants.  Applications may
be filed by enterprises affected by a restraint of competition and employers associations as well.
VII. SANCTIONS
The illegal carrying out of a cartel is sanctioned by:
-  the skimming off of unjustified enrichment;
-  invalidity of the cartel agreement;-  criminal liability of the offender.
On request of the public prosecutor the imposition of fines up to the amount of ATS
10 million (approx. ECU 660,000) on the undertaking deriving advantages of the offence.  The abuse
of a market-dominating position contrary to a prohibition by the Cartel court is a criminal offence as
well as the illegal carrying out of a vertical restraint or concentration and can be sanctioned by up to
three years imprisonment.  Fines shall be imposed for minor offenses against provisions of the
CartA 1988.
Exemptions
There are few partial exceptions to the general scope of application, for example the
provisions about cartels and resale price maintenance shall not be applied to contracts restricting the
ultimate seller of book, arts, music, magazine and newspaper trades to the selling price fixed by the
publisher as well as - under certain conditions - agreements concerning members of a cooperative("Genossenschaft"). These exemptions do not apply if they are capable of impeding the trade that falls
under certain international treaties, e.g. the Treaty on the European Economic Area.
BELGIUM
THE BELGIAN COMPETITION LEGISLATION:  LAW OF 5 AUGUST 1991
I. DESCRIPTION OF THE BELGIAN COMPETITION LEGISLATION
In general, the Belgian competition legisla tion is a copy of the European competition
legislation.
A. Cartels
Article 2 of the Belgian Competition Law of 5 August 1991 states that all agreements
between undertakings, decisions by associations of undertakings and concerted practices which haveas their object or effect the prevention, restriction or distortion of competition within the Belgian
market concerned or a substantial part of it 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;WT/WGTCP/W/34
Page 10
(e) make the conclusion of contracts subject to acceptance by other parties of
supplementary obligations which, by their nature or according to commercial usage,
have no connection with the subject of such contracts.
B. Abuse of Dominant Position
Article 3 of the Belgian Competition Law states  that any abuse by one or more undertakings
of a dominant position within the Belgian market concerned or in a substantial part of it shall beprohibited. 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 accordance to commercial usage,
have no connection with the subject of such contracts.
C. Mergers
Concentrations have to be notified in order to verify whether the concentration does not result
in the acquisition or strengthening of a dominant position on the relevant market.  This notification isonly obliged when the undertakings concerned together have a worldwide turnover of more than three
billion Belgian francs and control over 25 per cent of the market concerned.
II. IMPLEMENTATION
Enforcement staff:
- 1 expert for the follow-up of Community competition law
- 21 experts to enforce Belgian competition law
- 2 experts for the secretariat of the Competition Council
Enforcement activity:
- merger cases notified and closed in 1996:46
- antitrust cases notified in 1996:34- antitrust cases closed in 1996:5
Sanctions faced by firms:
- no sanctions have been applied in 1996 by the Belgian Competition CouncilWT/WGTCP/W/34
Page 11
III. DESCRIPTION OF AGREEMENTS WITH THIRD COUNTRIES
Article 50 (b) of the Belgian Competition Law states that:
"a) the Competition Department may communicate documents and information
in its possession to the relevant authorities for the enforcement or articles 8 and 9 of
the Treaty establishing the Benelux Economic Union and articles 10 and 11 of the
executory Protocol attached thereto and the relevant Community authoritiesappointed in accordance with article 89 of the Treaty establishing the European
Economic Community;
b) as part of reciprocal agreements for mutual assistance in competition practice,
the Department may communicate the contents of necessary documents and
information to the relevant foreign authorities with responsibility for competition
matters."
Up until now, there are no bilateral agreements concluded as mentioned in the above article.
DENMARK
I. INTRODUCTION
The present Danish Competition Act (1989), which is based on the principles of control and
transparency, will from 1 January 1998 be substituted by a new Competition Act, which was passed
by Parliament on 30 May 1997.
The purpose of the Act (Statute no. 384 of 10 June 1997) is to promote the greatest possible
degree of free and efficient competition.
Contrary to the present Act the new Act is based on the principle of prohibition similar to the
EU - competition rules.  The Act prohibits anti-competitive agreements etc. as well as abuse of a
dominant position on the Danish market.
The Act, which applies to private and public enterprises, does not provide for merger control.
The Act will be administered by the Competition Council (Konkurrencerådet) assisted by a
Secretariat (Konkurrencestyrelsen) under the management of a Director General.
II. BRIEF DESCRIPTION OF THE NEW DANISH COMPETITION ACT
A. Prohibition on Anti-competitive Agreements, etc.
According to the Act, anti-competitive agreements etc. are prohibited.  This provision, which
is similar to Article 85(1) in the EC - Treaty, will be applied in accordance with EU - case law.
Violations of the prohibition may be subject to fines.
B. Agreements of Minor Importance
The Act contains two exceptions from the general prohibition on anti-competitive
agreements:WT/WGTCP/W/34
Page 12
(1) The prohibition does not apply to agreements between enterprises with an aggregated
annual turnover of less than DKr 1 billion and a market share of less than 10 per cent.
(2) The prohibition does not apply to agreements between enterprises with an aggregated
annual turnover of less than DKr 150 million irrespective of their joint market share.
It should be noted, however, that such agreements between small and medium-sized
enterprises may under special circumstances be covered by the prohibition, e.g. incase of resale price maintenance.
C. Exemptions
According to the Act the Competition Council is empowered to exempt specific agreements
from the prohibition under the same conditions as laid down in Article 85(3) in the EC Treaty.  Such
exemptions may be granted individually, if a notification is made or as a block exemption.  Block
exemptions corresponding to the present EU - regu lations on block exemptions will be published
together with a specific block exemption on smaller chains of shops in the retail sector.  TheCompetition Council may also grant a negative clearance, if a notification is made.
D. Prohibition on Abuse of a Dominant Position
According to the Act abuse of a dominant position is also prohibited.  This provision is partly
consistent with Article 86 in the EC Treaty.  But contrary to Article 86, violation of the prohibition is
not in itself subject to a penalty.  If the prohibition is violated the Competition Council may issue anorder to bring the violation to an end, and disregard of such an order will be subject to a fine.  This
two stage arrangement is made out of defence to the enterprises involved, as it can often be difficult to
prove whether a certain case actually emerge from abuse of a dominant position.
Violation can, however, be subject to a fine if the enterprise concerned - within the last
five years - has been ordered to bring another similar violation of the prohibition to an end.
After notification the Competition Council may grant a negative clearance under the same
conditions as in the EU.
III. IMPLEMENTATION AND ENFORCEMENT
A. Organization
The Competition Council (Konkurrencerådet), which will be responsible for the
administration of the new Danish Competition Act, was established from 1 July 1997 in order to
prepare the implementation of the Act (block exemp tions, regulations, notification forms etc.).  The
Council consists of 19 members with experience in legal, economic, financial and consumer affairs.
The Chairman and eight members must be independent of business interests and consumer interests.
A Secretariat (Konkurrencestyrelsen) with approximately 30 experts will assist the Council
and enforce the Act.
Only the public prosecutor may impose fines for infringements of the Act.
Decisions taken by the Competition Council can only be appealed to the Competition Appeals
Tribunal, and the decisions of the Tribunal can  be brought before the ordinary law courts.WT/WGTCP/W/34
Page 13
B. Interaction Between Danish Competition Law and EU - Law
The Act aims at creating the best possibilities for co-existence between Danish competition
law and competition policy in the European Union, to the effect that Danish enterprises will only have
to comply with one basic principle, namely the principle of prohibition.  The Act will have the effect
that a one-stop-shop-principle will apply so that anti-competitive agreements, etc., will only be
subject to assessment under one set of rules, i.e. ei ther the Danish legislation or the EU - competition
rules.
The new Act, however, does not empower the Competition Council to apply Articles 85
and 86 in the EU Treaty directly.
IV. RIGHTS OF FIRMS
The access of foreign enterprises to refer a matter directly to the Danish courts is in principle
subject to the same statutory rules as applied to Danish enterprises.
The new Competition Act implies that there is  direct reference to the civil courts for
enterprises claiming for damages which they have suffered from anti-competitive agreements or
practices (private suits).
A foreign enterprise may also refer a matter/complaint to the Competition Council.  If the
Council refuses to deal with the case, such a refusal cannot be brought before the Competition
Appeals Tribunal.
Also in this respect foreign and Danish enterprises are treated equally.
Both Danish and foreign complainants, appellants, parties with a right of appeal, and parties
to whom a decision is directed are normally considered as legitimate parties to the case.
The same set of rules applies to both Danish and foreign enterprises as regards their access to
intervene in a case, which another enterprise has brought before the competition authority or the
national courts.
According to the new Danish Act on competition the Act on Public Administration
(offentlighedsloven) does not apply to cases within  the scope of the Act.  Only parties may have
access to the file.
The Competition Council may publish decisions etc. concerning the application of the Act in
so far that the publication does not contain or reveal business secrets, etc.
V. DESCRIPTION OF AGREEMENTS WITH THIRD COUNTRIES
Denmark has no bilateral agreements with third countries on cooperation in competition
cases.
Cooperation with third countries in competition cases takes place according to the
OECD-Recommendation (1995) or informally, in partic ular between the competition authorities in the
nordic countries.WT/WGTCP/W/34
Page 14
FINLAND
I. THE COMPETITION LEGISLATION
A. Rules Governing Competition Restraints
The material rules of the Finnish competition law are to be found in the Act on Competition
Restrictions (no. 480/92) which came into force on 1 September 1992.  The Act is based on the
prohibition principle.  It covers horizontal and vertical competition restraints as well as abuse of a
dominant market position.
B. Resale Price Maintenance
The Act (Article 4) prohibits resale price maintenance.  The prohibition covers both
maximum and minimum prices but it does not cover price recommendations.  The latter are treated
according to abuse principle and covered by Article 9 of the Act.
C. Tendering Cartels
The Act on Competition Restrictions (Article 5) prohibits tendering cartels.  The prohibition
does not cover joint tendering for joint performances.
D. Horizontal Cartels
In Article 6 paragraph 1 of the Act on Compet ition Restrictions horizontal agreements,
recommendations and other such arrangements concerning prices or charges are prohibited.  The
prohibition against price cooperation applies not only to the prices charged for goods or services, but
also to discounts, delivery charges and delivery conditions.
Article 6 paragraph 2 of the Act on Competition Restrictions as a rule forbids horizontal
agreements between undertakings aimed at limiting production and dividing markets or sources of
supply. The prohibition does not, however, cover restrictions which are necessary for arrangements
which contribute to the efficiency of production or distribution or promote technical or economic
development and the benefit of which mainly accrues to customers or consumers.  Naked restrictionsof production or division of markets or sources of supply which restrict competition and benefit only
the undertakings involved are per se  prohibited.
According to Article 19 of the Act, the above mentioned competition restrictions (resale price
maintenance, tendering cartels, horizontal cartels) may qualify for an individual exemption from the
prohibitions.  This requires that the restriction promotes the production or distribution of commodities
or technical or economic development, and that the benefit primarily accrues to the clients or the
customers.  Applications for exemptions are made to the Office of Free Competition, which in the
first instance decides whether an exemption can be granted.  If the Office does not grant an
exemption, it must refer the matter to the Competition Council if the applicant so demands.
E. Abuse of a Dominant Position
The Act on Competition Restrictions prohibits abuse of a dominant position by an
undertaking or association of undertakings.  Article 7 of the Act lists examples of abusive and hence
prohibited practices which include:  (1) refraining from a business relationship without a justified
cause;  (2) use of business terms which are not based on fair trade practices and which restrict theWT/WGTCP/W/34
Page 15
freedom of action of the client (e.g. tying);  (3) use of exclusive selling or purchasing agreements
without a justified cause;  (4) application of a pricing practice which is unreasonable or which is likely
to restrict competition (excessive, predatory and discriminatory pricing practices);  and (5) use of a
dominant market position to restrict competition in  the production or marketing of other commodities
(cross-subsidization).
F . Vertical Restraints
Article 9 of the Act covers vertical restrictions excluding resale price maintenance and abuse
of a dominant market position.  It also applies to such horizontal restraints not explicitly prohibited.
These restraints are treated under the so called abuse principle which means that restraints are
evaluated case by case.  Where a restraint is deemed both to have harmful effects and to be
incompatible with sound and effective economic competition, action can be taken to eliminate such
effects (In the first stage the Office of Free Competition will negotiate with the undertakings
concerned. In case the harmful effects cannot be eliminated through negotiations, the Office shallrefer the case to the Competition Council, which can prohibit the restraint.).
G. Merger Control
The Finnish competition legislation does not contain a merger control regime.  The Office of
Free Competition, however, may request that domin ant companies inform it of their mergers and
acquisitions.
H. Coverage of the Law
(1) Exclusions
The Act on Competition Restrictions is not applied to agreements or arrangements which
concern the labour market, or to agreements, decisions or corresponding practices by agricultural
producers or associations of producers concerning th e primary production of agriculture. To the extent
that it is a question of other than primary production, the arrangements fall within the scope of the
Act.
Finland's Act on Competition Restrictions is not applied to a competition restriction which
restrains competition outside Finland insofar as it is not directed against a Finnish clientele.
There are no exclusions or special rules regarding small and medium sized firms.(2) Exemptions
The prohibitions of Articles 4-6 (resale price maintenance, tendering cartels, horizontal
cartels) of the Act on Competition Restrictions may be exempted if the arrangement promotes the
production or distribution of commodities, or technical or economic development where the benefit
primarily accrues to the clients or the consumers.
I. Main Differences with the Community Law
The Finnish competition legislation largely corresponds to the EC competition rules;
horizontal cartels, resale price maintenance and abuse of a dominant market position are prohibited
competition restraints.  As far prohibition against horizontal cartels is concerned, the Finnish Act on
Competition Restrictions outright prohibits price and other cartel agreements without stating anything
on the consequences of the restraint or the motives of the parties concerned.  As for the prohibition on
the abuse of a dominant market position, it differs from Article 86 primarily with respect to wordingWT/WGTCP/W/34
Page 16
of the lists of examples on an abuse.  In practice, both provisions lead to the same conclusion.
However, unlike Article 86, the Finnish Act on Competition Restrictions (Article 7) explicitly
mentions the use of exclusive agreements as a means of abuse.
A significant difference between the Finnish and EC competition rules lies with the treatment
of vertical restraints.  Whereas the EU applies the prohibition principle, in Finland an abuse principle
is applied.  An exception to this is the prohibition against resale price maintenance covered byArticle 4 of the Finnish Act on Competition Restrictions.
As mentioned above, Finland does not have a merger control regime.
J. Application of the EC Competition Rules
In the Act on Finland's joining in the European Union (no. 1540/94) it is stated that the
provisions of the EC Treaty are effective in Finland.  On the basis of this, the Office of Free
Competition and the Competition Council have been considered empowered, based on substantive
law, to apply the provisions of the EC Treaty which are in force as a law in Finland. When applyingArticles 85 and 86 of the EC Treaty, national authorities shall follow the procedural rules inherent in
the national law, for the procedural rules of Council Regulation 17/62 do not apply to national
authorities.  However, the Finnish Act on Competit ion Restrictions does not contain any provisions on
the basis of which the investigative powers and sanctions of the Act on Competition Restrictions
would be available when the competition authorities apply the provisions of the EC Treaty.  Anexception are the powers of inspection.
II. IMPLEMENTATION OF THE LAW
A. Enforcement Staff
In Finland, competition issues fall within the domain of the Ministry of Trade and Industry.
The Ministry is responsible for legislative issues as well as issues of public procurement and stateaids. Accountable to the Ministry of Trade and Industry, the Office of Free Competition is a general
and independent authority handling antitrust issues. Competition restrictions are treated under an
administrative process.  The judicial organ in competition issues is the Competition Council which is
located under the auspices of the Ministry of Trade and Industry.  The decisions of the Competition
Council, consequently, may be appealed to the Supreme Administrative Court.
B. The Office of Free Competition
Is the investigative body;  it investigates competition restrictions and makes proposals to the
Competition Council regarding infringements of the prohibitions contained in Articles 4-7 of the Act
on Competition Restrictions, and regarding the imposition of a competition infringement fine.  The
Office of Free Competition can also grant exemptions from the prohibitions contained in Articles 4-6of the Act.  In case of other than per se  prohibited competition restraints, the Office of Free
Competition shall act to eliminate them and as a final measure, can refer a matter to the Competition
Council.  In addition, the Office of Free Competition may issue an interlocutory injunction or
obligation.
The Office of Free Competition is also the competent national authority in the application of
the Community competition rules.
The staff of the Office of Free Competition amounts to 55 government officials (situation
July 1997).  About 85 per cent of the staff deal with competition cases and other competition issues
including EU issues.  The remaining 15 per cent are in charge of administrative tasks.WT/WGTCP/W/34
Page 17
Under the Office of Free Competition, the provincial governments act as the regional
authorities in competition issues.
C. The Competition Council
Decides whether there has been an infringement of the Act on Competition Restrictions;  the
Office of Free Competition makes a proposition to the Council in such cases where the Office has
come to the conclusion that an infringement of the Act's prohibitions has occurred.  The Councilorders undertakings to discontinue a prohibited restraint;  imposes fines on undertakings violating the
provisions of the Act on Competition Restrictions;  imposes fines to enforce an interlocutory
injunction or obligation;  and decides whether an interlocutory injunction or obligation shall continue.
The decisions on exemptions made by the Office of Free Competition can be referred to the
Competition Council and the Council can grant or withhold an exemption.
The Competition Council has a chairman, a vice-chairman and seven other members, who
work on a part-time basis.  It has two full-time secretaries.
D. The Supreme Administrative Court
Is the appellant body where the decisions of the Competition Council can be appealed to.
E. Enforcement Activity in 1996
In 1996, the Office of Free Competition received 293 new domestic antitrust cases.  The
number of antitrust cases closed during that year amounted to 316.  Of these 75 cases were closed bya formal decision, 153 by an administrative letter and the remaining cases did not warrant any
measures.
F. Sanctions
According to Article 8 of the Act on Competition Restrictions, the Competition Council may
impose fines up to Fmk 4 million or 10 per cent of the previous year's total turnover of eachundertaking or association of undertakings if there is an infringement of the Articles 4-7 of the Act.
The Competition Council can also order an undertaking to terminate an infringement.  If it is
necessary to prevent the application or implementation of a restriction immediately, the Office of Free
Competition can issue a temporary injunction.
According to Article 18 of the Act, agreement terms or stipulations which are in conflict with
the prohibitions are void.
In 1996, two infringement fines were imposed.  On 24 October 1996, the Competition
Council imposed on Finland's major oil company Neste a competition infringement fine for behaviour
violating Article 7 of the Act on Competition Restrictions as Neste was found to have abused its
dominant position in the wholesale of motor fuels by applying a discriminatory pricing practice.  Thefine amounted to Fmk 2 million. In the other case, which concerned a tendering cartel of eight local
taxi drivers, the Supreme Administrative Court imposed a fine of Fmk 5,000 on each driver.
G. Rights of Firms
In competition matters, Finnish law (antitrust, procedural or administrative) does not make
any difference between a domestic and a foreign company.  Foreign companies can therefore pursue
remedies under the Finnish Act on Competition Restrictions just like Finnish companies.  They haveWT/WGTCP/W/34
Page 18
the right to sue directly in national courts and initiate a procedure at the Office of Free Competition
and the Competition Council.
The role of the Office of Free Competition in handling competition restraints is that of an
investigative body.  The Office of Free Competition is obliged to response to all petitions that have
been brought up to it in due form.  Only if the petition does not fall within the domain of the Office of
Free Competition, can the Office totally refrain from handling the petition and just transfer it to theconcerned authority.
The response to a petition can take the following forms.  In the case of competition restraints
not prohibited per se , the Office of Free Competition has certain discretionary powers concerning
what kind of action to take.  According to Article 9 of the Act the harmful effects of a competition
restraint must be incompatible with the sound and effective economic competition.  If this criterion is
not filled, as is the case with some minor competition restrictions, the Office of Free Competition
does not have to take any further action to handle the case.  However, closing a case in this way,usually by an administrative letter, very often requires research and investigation and in a way,
measures by the Office to decide on the harmfulness of the competition restraint.  If the Office, after
an investigation, finds that a competition restricti on has harmful effects, it shall negotiate with the
parties to the restraint to abolish such effects.  In case the Office of Free Competition does not
succeed in abolishing the harmful effects through negotiations, it shall refer the case to theCompetition Council.  On the other hand, if the Office draws the conclusion that no harmful effects as
stated in Article 9 have been involved, an undertaking whom the competition restriction directly
concerns, or an organization protecting the interests of firms or consumers may refer the case to the
Competition Council.
Respectively, regarding prohibited competition restraints, the Office of Free Competition
assesses and decides on whether there has been an infringement of the prohibitions included in
Articles 4-7 of the Act on Competition Restrictions.  If no infringement is found, the Office of Free
Competition closes the case.  If an infringement of the prohibitions is established, the Office makes a
proposition to the Competition Council on the forbid ding of the restraint and the imposing of a
competition infringement fine.  If the Office of Free Competition makes a decision stating that noinfringement has been found, the undertaking whom the competition restriction directly concerns or
an organization protecting the interests of firms or consumers may make the proposition to the
Competition Council.
As regards transparency, the decisions of the Office of Free Competition, the Competition
Council and the Supreme Administrative Court are public and the decisions are fairly detailed andmotivated.  Only the hearings arranged by the Competition Council are not public.  The most
significant decisions are made public through press releases.  The Office of Free Competition
publishes regularly a compilation of its significant decisions in their full length and a newsletter.
FRANCE
1. Rules of French competition law
Order No. 86-1243 of 1 December 1986 on freedom of prices and competition  establishes the
rules ensuring that competition is respected.
ANTI-COMPETITIVE PRACTICES
Principles
The Order lays down the principle of the prohibition  of:WT/WGTCP/W/34
Page 19
- Ententes  (agreements in restraint of trade) having as their object or effect the
prevention, restriction or distortion of competition on the market (Article 7) ;
- abuse of dominant position (Article 8) :  abusing a dominant position or taking unfair
advantage of a state of economic dependence.
The rules set out at Article 7 and 8 of the Order, respectively, relating to agreements and
abuse of a dominant position, are similar to the prohibitions of anti-competitive practices inArticles 85 and 86 of the Treaty of Rome.
The order also establishes the prohibition per se of certain  restrictive practices  such as:
- Sales at predatory prices ( Article 10-1 );
- resale at a loss ( Article 32 );
- imposed resale prices ( Article 34 );
- discriminatory practices ( Article 36 ).
Exemptions
Article 10 of the Order establishes alternative common justifications whereby agreements and
abuse of dominant position, objectively reprehensible practices, cease to be offences.  The Article
provides:
"Articles 7 and 8 do not apply in the case of:
1. Practices resulting from the application of a legislative te xt or a regulation adopted to
implement such a text;
2. practices of which the undertakings concerned can show that they have the effect of
ensuring economic progress  and allow consumers a fair share of the resulting benefit,
without affording such undertakings the pos sibility of eliminating competition in
respect of a substantial part of the products in question."
These may consist of individual waivers  granted by the Competition Council or collective
waivers   authorized by decree after the Council has given a favourable opinion.
Application of the Community rules by the French authorities and courts
Pursuant to the principle of the direct applicability of Community law, the ordinary French
courts may have to try and decide cases under French legal provisions (Article 7 and 8 of the Order)as well as those of the Treaty of Rome (Articles 85 and 86 EC).  Likewise the Competition Council,
an independent administrative authority empowered to rule on the merits of Articles 7, 8 and 10-1 of
the Order, has been empowered to apply Articles 85 and 86 of the Treaty under Article 56 bis of the
Law of 11 December 1992.  However, the powers of the national authorities and courts extend only to
Articles 85 paragraph 1 and 86 EC.  Article 85, paragr aph 3, concerning the possibility of refusing or
granting an exemption lies within the exclusive jurisdiction of the Commission of the European
Communities.  However, the national courts may find that Article 85, paragraph 3, does not apply:
the Commission thus has exclusive powers only in an affirmative sense.WT/WGTCP/W/34
Page 20
CONCENTRATIONS
Conditions of control
The order does not lay down any prohibition in principle  of such operations but does provide
for  a control of concentrations  at the initiative of enterprises or the government.
The notion of concentration is defined in Article 39 of the Order:  "Concentration is the result
of any act, of whatever form, which involves the tran sfer of ownership of or the right to use all or part
of the goods, rights and obligations of an enterprise or which has the object or effect of enabling an
enterprise or a group of enterprises to exercise , directly or indirectly, a decisive influence over one or
more enterprises".
For a concentration to be the object of a control, it must reach one of two quantitative
thresholds laid down in Article 38 :
- The first threshold  is a relative one and is calculated in terms of market share :  a
concentration may be controlled where the enterprises concerned accounted for over25 per cent of the sales, purchases or transactions on a national market of goods,
products or services that are substitutable or a substantial part of such a market;
- the second threshold  is absolute and is calculated in terms of    turnover :  a
concentration may also be controlled where the enterprises concerned have a total
turnover net of taxes of more than 7 billion francs, provided that at least two of theenterprises concerned have a turnover of at least 2 billion francs.
Differences with Community controls
At Community level , control of concentrations is provided for under  Council Regulation
No. 4064/89 of 21 December 1989.   It applies to enterprises in all economic sectors with the
exception of those falling under the Treaty of Paris establishing the European Coal and SteelCommunity.
The conditions of Community control of concentrations are not fundamentally different from
those established by French law.  Only the thresholds   for the operation to become a Community
matter are different.
The thresholds are as follows:- The aggregate worldwide turnover  of all the enterprises concerned must exceed
5 billion ecus ;
- the aggregate Community-wide turnover of each of at least two of the enterprises
concerned must exceed 250 million ecus .
However, even if these two thresholds are attained, there is no control where each of the
enterprises concerned achieves more than two th irds of its aggregate Community-wide turnover
within one and the same single member State.WT/WGTCP/W/34
Page 21
2. Implementation of rules, controls and sanctions
ANTI-COMPETITIVE PRACTICES
Procedure
In order to stop infringements of competition law, French or foreign enterprises may apply to
the competition authorities or bring actions before the national courts.  In the latter case they may also
obtain compensation for the damage caused by the infringement.
Application to the services of the Minister of the Economy
An enterprise that considers itself to be the victim of anti-competitive practices may report the
matter to the services of the Minister of the Economy.  The Directorate General for Competition,
Consumer Affairs and Fraud Prevention (DGCCRF)  receives complaints, gathers the relevant
information and carries out the necessary inquiries.  On the basis of these inquiries, the Minister of the
Economy refers the matter to the Competition Council  when he considers that the findings appear to
fall within its sphere of competence.
This does not preclude direct referral to the Competition Council by an enterprise.
Referral of cases to the Competition Council
A French or foreign enterprise may refer a matter directly to the Competition Council, which
must investigate the matter within a reasonable period, as defined by Article 6 of the European
Convention on Human Rights and the rule of prescription (three years).  Precautionary measures maybe taken very rapidly.
Certain conditions apply to referring a case to the Council.  The enterprise must:
- Have legal standing as at the date when the application is made;
- have an interest in the action, that is to say show that it is the victim of anti-
competitive practices and hence establish injury;
- submit sufficient evidence:  mere allegations are not enough;
- submit a legally relevant complaint:  the complaint is deemed relevant only if
the facts fall within the scope of Articles 7 and 8 of the Order, whether or not
by also falling under the provisions of Article 36.
The decisions of the Competition Council may be appealed for annulment or review to the
appeal court of Paris .  Appeals may be filed either by the parties concerned or by the Minister of the
Economy.  They must be submitted within a month by the parties and within ten days by the Minister
following notification of the Council's decision.
All decisions  of the Competition Council are published in the Bulletin officiel de la
concurrence, consommation et répression des frau des (BOCCRF).  The reasons for the decisions must
be stated , and the decisions notified to the complainant and to the Minister of the Economy.WT/WGTCP/W/34
Page 22
Actions before the civil courts
The judicial courts play an exclusive role in the application of Title IV of the Order
concerning transparency and restrictive practices.  Article 36 provides that:
"An action may be brought (...) by anyone showing a justifiable interest, by the Parquet
(Public Prosecutor's Office), by the Minister of the Economy or by the President of the Competition
Council (...)"
In the case of agreements and concerted practices (Article 7), abuse of dominant position
(Article 8) and predatory pricing (Article 10-1), the court acts concurrently with the Competition
Council.  Where the facts are liable to constitute a criminal offence, the ordinary courts likewise have
jurisdiction.
A French or foreign enterprise that is the victim of illegal practices may bring an action on the
merits or for interim relief before the civil or commercial courts.
- The procedure de référé or "référé-concurrence" (interim proceedings) may be
instituted by anyone showing a justifiable  interest .
- On the merits, the ordinary courts may hear actions for annulment or for damages
(réparation).
These actions may be brought independently of any proceedings before the Competition
Council.  However, nothing prevents them from being brought in parallel with or consecutively to aproceeding before the Council.
An action for damages is based on the ordinary law in Articles 1282 and 1283 of the Civil
Code.  It is necessary to show wrong-doing , damage and a causal link between the two.
Proceedings before the criminal courts
With Article 45 of the Law No. 73-1193 Establishing Guidelines for Trade and Crafts of
27 December 1973, the victim of an economic offence may bring criminal indemnification
proceedings before the investigating judge and set in motion a public action.  Such an action will be
admissible only if the damage is personal and direct.
Bringing criminal indemnification proceedings is done by lodging a complaint with an
investigating judge, at the hearing or by direct summons before the Tribunal correctionel  in the case
of ordinary offences, or the Tribunal de Police  in the case of minor offences.
If it does not itself institute criminal proceedings by a complaint or direct summons, a French
or foreign enterprise may apply to be joined to the public action instituted by the Competition
Council6 or the Government procurator's office (Parquet).
French or foreign enterprises may appeal these decisions under the conditions provided for in
the ordinary law and further appeal for cassation   (to have the judgement set aside for error of law or
procedure).
                                                     
6 The Competition Council itself may transmit the file to the procureur de la République (Government
procurator) when the facts appear to warrant application of Article 17 of the Order.WT/WGTCP/W/34
Page 23
Persons committing offences in the form of an agreement or abuse of a dominant position that
is not lawful under Article 10 of the Order or of restrictive practices are liable to sanctions.
SANCTIONS
Sanctions may be imposed by the Competition Council or by the ordinary courts.
Sanctions imposed by the Competition Council
After the inquiry stage carried out by the services of the Ministry of the Economy, the
DGCCRF, the Competition Council undertakes the interlocutory proceedings and then decides on
whether or not to take further action.  It can issue two types of decision:
- Measures or injunctions for the restoration of competition;
These injunctions are compulsory.  If they are not complied with, the Council may impose a
pecuniary penalty within the limits laid down at Ar ticle 13 of the Order.  The maximum amount of the
penalty is, for an enterprise, 5 per cent of its turnover net of taxes in France during the previous
completed financial year.  If the offender is not an enterprise, the maximum is 10 million francs.
- Pecuniary penalties;
This penalty may be applicable immediately.  The amount of the penalty is, for an enterprise,
5 per cent of the turnover net of taxes in France during the previous completed financial year.
Sanctions imposed by the judicial authorities
Civil penalties
The civil courts are empowered, together with the Competition Council, to apply Articles 7
and 8 of the Order prohibiting agreements and abuse of dominant position, as well as Article 10-1
prohibiting sales at predatory prices;  they also have exclusive powers for all other "restrictive"
practices other than those mentioned in Articles 7, 8 and 10-1.
They may declare the anti-competitive agreements null and void.   Any commitment,
agreement or contractual clause relating to a practice prohibited by Article 7, 8 and 10-1 is ipso jure
null and void (Article 9 of the Order).  Nullity may be invoked by interested third parties but the
parties may not invoke it with regard to third parties in order to avoid their obligations.
The civil courts may also order the author of the damage arising out of the infringement of the
competition law to pay damages , in accordance with the ordinary law of liability, based on
Articles 1382 and 1383 of the Civil Code.  The victim of the damage may receive damages and
interest for the injury incurred.
Criminal penalties
Article 17 of the Order establishes the penalties applicable to offenders, namely any natural
person who " has fraudulently taken part personally and in a decisive manner in the conception,
organization or carrying out " of an illegal agreement or abuse of dominant position.  The penalties
provided for are a term of imprisonment for six months to four years and/or a fine of F 5,000 to
F 500,000.WT/WGTCP/W/34
Page 24
The Court may also order that the decision be published in full or in extracts in the
newspapers which it designates, at the expense of the guilty party.
CONCENTRATIONS
Procedure
Enterprises concerned by a concentration may notify it when it still at the project stage  or
within three months  following the moment when it has become a legally definitive act.  Notification is
optional .
The advantage of notification is that the enterprises know in advance the position of the
government , which has a maximum period of six months  in which to oppose  the concentration.
In the absence of such notification, the Minister of the Economy may refer any merger that he
considers objectionable to the Competition Council (Article 38 of the Order).
Decisions and sanctions
After receiving the opinion of the Council, the Minister of the Economy may:
- Either not call in question the operation;
- or issue orders (injonctions) in order to restore sufficient competition or to promote
economic and social progress.
Before taking a decision, the Minister must send the draft decision together with the opinion
of the Competition Council to the parties concerned and inform them of the  time-limit  within which
they may submit their comments .
The Law does not lay down any time-limit for referring a matter to the Council or for the
issuing of orders  (injonctions) .  A concentration that is not notified may thus be called into question
by the authorities at any time.
The Minister is not bound by the opinion of the Council.  He may authorize a concentration or
on the contrary issue orders to the enterprises.
These orders are mandatory.  If the enterprises do not comply with them, the Minister may,
after consulting the Competition Council - and within the limits of the opinion given by the latter -
impose pecuniary sanctions  on the enterprises concerned, up to a ceiling of 5 per cent of the turnover
net of taxes achieved in France by the enterprise during the last complete financial year before thefirst act that interrupted the period of prescription.
COMPETITION POLICY STAFF
DIRECTORATE OF COMPETITION, CONSUMER AFFAIRS AND PREVENTION OF FRAUD
(DGCCRF)
The main functions of the DGCCRF, part of the Ministry of the Economy, Finance and
Industry, are to:
- Guarantee the quality of products and services and fair trade;WT/WGTCP/W/34
Page 25
- ensure consumer safety and health;
- protect the economic interests of consumers and develop an active consumer affairs
policy;
- promote free competition .
The DGCCRF has 4,111 staff  assigned as follows:
- 3,228 officials serving in 101 directions départmentales ;  in some cases these
directorates are located in a major town of a département other than its administrative
centre.
- 485 staff serving in the  central service,  of whom about 40 are specifically responsible
for competition matters.
- The remaining 298 staff work in specialized units:  two training centres, two national
investigation directorates, and a laboratory.
Out of the total of about 4,000 staff, an estimate d 170 deal full-time with competition affairs.
COMPETITION COUNCIL
The Competition Council is an independent administrative authority exclusively responsible
for competition matters.  It is composed of 17 members  appointed for six years by decree pursuant to
a report of the Minister of the Economy.
- Eight members from the French high assemblies or jurisdictions:  Council of State,
Cour de Cassation, Cour des Comptes or other administrative or judicial bodies.
- Four eminent persons selected for their expertise in economics or competition and
consumer affairs.
- Five eminent persons from the production, distribution, craft or services sectors or the
professions.
The Competition Council also has a General Rapporteur, who supervises and directs the
activity of 25 permanent rapporteurs and a dozen external rapporteurs who carry out investigations
and prepare decisions (first-level inquiries are carried out by the services of the Minister of the
Economy).  The Competition Council also has an administrative staff of 62 (secretariat, procedures,
documentation and general services).
SUMMARY OF CONTROL ACTIVITIES IN 1996
BY THE DGCCRF
Action against agreements in restraint of trade and dominant positions
The DGCCRF services established 309 circumstantial cases of anti-competitive practices,
carried out 242 investigations and drew up 185 reports,   including those prepared at the request of the
Competition Council.  The Minister of the Economy referred 36 cases to the Council  on the basis of
Article 11 of the Order (agreements in respect of trad e and abuses of dominant position).  As in 1995,
most of the cases referred to the Council concerned illicit concerted action in the area of publicWT/WGTCP/W/34
Page 26
procurement and cases of abuse of dominant position, including those where enterprises holding legal
monopolies might be responsible.
With regard to cases referred to it by the Ministry or external parties, the Council has already
taken important decisions concerning the activities of these enterprises, in particular EDF and France
Telecom, on their basic market or diversification markets.
On referral by the Ministry it has also sanctioned the abuse of dominant position by Lily
France , a major pharmaceutical company:  this and other decisions concerning public procurement
for hospitals illustrate the contribution that competition law can make towards the rationalization of
health spending in the interests of the social security system itself.
Control of concentrations
There has been a rise in the number of voluntary notifications  of concentrations, either
spontaneously or after official discussions.  In all, 27 concentrations have been notified.
The number of cases referred to the Competition Council has remained stable.   O f  t h e  s i x
concentrations referred to the Council, decisions have already been taken on five:  two were
authorized without condition (Otis S.A./Ascenseu rs Soulier S.A;  Eridiana-Beghin-SAY/Compagnie
française de sucrerie) and three were authorized with undertakings regarding modifications
(Heineken/Fischer;  Auchan/Docks de France;  Callebaut AG/Barry S.A.
Of the other 21 concentrations notified, only one has been the subject of undertakings by the
enterprise (Canal+/Nethold)
Anti-competitive practices
The pursuit of more ethical trade practices continued in 1996 before the civil and commercial
courts, which have made an example of the guilty parties:  the Intermarchandises France case,
(tribunal de commerce of Paris, 25 November 1996);  the Cora case  (tribunal de grande instance of
Colmar, 5 February 1997);  the Carrefour-Ego Fruits (judgement of 4 March 1997);  the Auchan-
Soviba case  (tribunal de commerce of Versailles, 7 March 1997).
Litigation in the criminal courts has not been ve ry intense, given the context of the change in
the law (revision of Title IV of the Order dealing with this subject).
COMPETITION COUNCIL
In all, the Competition Council dealt with 142 cases in 1996, imposed sanctions totalling
F 106.2 million on 99 enterprises.
This is the same number of cases as in 1995 and 1994.
Nearly 30 per cent of the decisions leading to sanctions (16 out of 46) concerned tendering
procedures for private or public procurement.
In particular the Council set out to sanction agreements aimed at squeezing a competitor out
of the market, for example where motor-vehicle concessionaires sought to keep a motor-vehicle
company representative out of a trade fair.WT/WGTCP/W/34
Page 27
It also imposed sanctions in a case concerning the distribution of Rolex  watches, in which the
manufacturer could exclude certain forms of trade by requiring that a repair workshop be installed,
while the lack of qualified personnel made this clause  difficult to comply with, thus giving rise to the
possibility of discriminatory treatment.
It also sanctioned EDF  (the national electricity supply monopoly) which refused to buy
electricity generated by independent producers or called in question construction or interconnectionprojects.
The percentage of appeals by the sanctioned enterprises to the Court of Appeal of Paris
remained constant (33 per cent), as did the percentage of decisions confirmed on their merits by the
Court of Appeal and the Court of Cassation.
GERMANY
I. THE ACT AGAINST RESTRAINTS OF COMPETITION
The protection of competition as the driving force behind the market economy forms the
foundation of the economic order in Germany.  The Bundeskartellamt, the Federal antitrust authority
responsible to the Federal Ministry of Economics, is competent for the protection of competition. Its
activities are based on the Act against Restraints of Competition (ARC) which came into force on
1 January 1958.
The Bundeskartellamt is the competent authority for all restraints of competition which have
effect in Germany.  If the restrictive effect on competition does not extend beyond the territory of one
Land, the competition authority of that Land is responsible.  Merger control is, however, the sole
responsibility of the Bundeskartellamt.  The decisions of the Bundeskartellamt are made in a
quasi-judicial proceeding by decision-making divi sions, which do not receive instructions from its
President.  The Bundeskartellamt has a staff of  about 240,110 of whom are lawyers or economists.
A. The Three Cornerstones of the ARC
(1) The ban on cartels
The ban on cartels covers the co-ordination of market conduct between several competing
enterprises. Examples of this are price and quota agreements and market allocation agreements. The
ARC, like European competition law, provides for exemptions from this general ban; the criteriaapplied are different, however.  Following an offici al procedure, the ARC authorises certain kinds of
cartel agreements which are associated with economic advantages without excessively restraining
effective competition.  In particular, these include rebate cartels, cartels regulating general terms of
business, cartels formed by small and medium-sized  businesses and specialisation cartels.  The two
latter forms of cartels play the greatest role.  Co-operation agreements between small andmedium-sized businesses enable such enterprises to improve their market opportunities when
competing against large companies.  In the case of specialisation agreements production can be
divided between the enterprises and a joint range of products can be offered for sale, as long as
substantial competition exists in the market concerned.  Unlike European law, the ARC does not
provide for any general ban on vertical restraints su ch as exclusive dealing agreements, except in the
case of resale price maintenance.  Authorised cartels and vertical restraints are subject to abuse
control, however.
German law, like EU law, provides specific exemptions for certain sectors of the economy
such as transportation, agriculture, credit institutions, copyright associations and the energy sector.WT/WGTCP/W/34
Page 28
(2) Abuse control
Market-dominating enterprises are subject to abuse control by the competition authority to
prevent them from exploiting their market power to the disadvantage of their competitors, buyers,
suppliers or consumers. The main objective is to maintain and create open markets with no entrybarriers for new and foreign competitors. Competitors can usually control the scope of action of
market dominating companies more effectively than abuse control proceedings before the competition
authorities.
(3) Merger control
Mergers have to be notified to the Bundeskartellamt immediately after completion if the
participating firms together recorded a turnover of at least DM 500 million.  If one of the merging
firms recorded an annual turnover of DM 2,000 million, the merger has to be notified prior to
completion. In the latter proceedings the deadline fo r examination is one month; this deadline can be
extended in "critical" cases by another three months.  In 1996 the Bundeskartellamt examined1,434 mergers, of which three were prohibited.  The ARC has considerable deterrent potential: merger
projects which might result in market dominance are often abandoned by the firms concerned already
in the planning stages or after initial talks with the decision-making divisions when they realise that
prohibition is likely.
Unlike EU law, the ARC provides for a two-stage procedure in which the Federal Minister of
Economics may, in exceptional cases, authorise a merger  prohibited by the Bundeskartellamt if this is
justified by a predominating public interest or advantages to the whole economy.  A total of
16 applications for authorization have been filed since merger control was introduced in 1973.
Ministerial authorization was granted in six of these cases.
B. Investigatory Powers and Sanctions
In cartel proceedings the Bundeskartellamt ha s investigatory powers which are governed by
the Code of Criminal Procedure (Strafprozeßordnung) and also permit offices and private homes to be
searched, for example.  The Bundeskartellamt may impose high fines on firms participating in a
cartel, and on the decision-makers of these firms.  Moreover, fines of up to three times the additional
receipts obtained as a result of an infringement may be imposed.  Fines amounting to DM 19.5 millionwere imposed in 1996, and in the first half of 1997 a figure of DM 264 million has already been
reached.
The ARC gives the Bundeskartellamt extensiv e powers to obtain information and conduct
inquiries also in abuse control and merger control proceedings.  For example, the Bundeskartellamt
may request information from businesses on their economic relationships and order inspections to be
carried out.
C. Procedural Rights and Publications
The parties concerned are to be informed of the reasons for formal decisions (for example
prohibitions).  During a proceeding the parties concerned are entitled to inspect the files.  In certain
cases persons, including competitors, for example, are to be admitted to the proceedings upon request.
Parties subject to investigations and decisions of the Bundeskartellamt may resort to the courts.
As in the case of European competition law, enterprises and individuals can complain about
restraints of competition by filing an informal petition with the Bundeskartellamt.  Whetherproceedings will be instituted lies within the discretion of the Bundeskartellamt.  It is the practice of
the Bundeskartellamt to inform the complainant on the outcome of the proceedings.
The principle of equal treatment applies: foreign enterprises enjoy no more extensive, and no
less extensive rights than German enterprises.WT/WGTCP/W/34
Page 29
Notified mergers, applications for ministerial authorization, the granting of authorization for
the aforementioned kinds of cartels etc. are to be published in the Federal Bulletin. The
Bundeskartellamt publishes an Activity Report every two years.
II. THE APPLICATION OF EUROPEAN COMPETITION LAW BY THE
BUNDESKARTELLAMT
Where trade between Member States is affected and the EU Commission does not act, the
Bundeskartellamt may proceed to "decentralised" application of Articles 85 and 86 of the Treaty of
Rome. The Bundeskartellamt has taken this as the legal basis for its decisions in nine proceedings so
far. In all formal proceedings of the EU Co mmission, the Bundeskartellamt may submit its opinion
and participate in the Advisory Committee meetings. If certain conditions are fulfilled, merger
proceedings can be referred by the EU Commission to the Bundeskartellamt for a decision.
III. INTERNATIONAL COOPERATION
A. Bilateral Intergovernmental Agreements
(1) The German/US agreement
In 1976, the governments of the United States of America and the Federal Republic of
Germany concluded an agreement relating to mutual co-operation regarding restrictive business
practices.  The underlying consideration was that restrictive business practices affecting their
domestic or international trade are prejudicial to the economic and commercial interests of theircountries and that action against these practices can be made more effective by the regularisation of
co-operation between their antitrust authorities.   The agreement provides for co-operation and
assistance in antitrust proceedings, in studies related to competition policy and possible changes in
antitrust laws, and in activities for international organisations if these are related to restrictive business
practices.  Each party agreed inter alia  that it will provide the other party with significant information
which comes to the attention of its antitrust authorities and involves restrictive business practices.
(2) The German-French agreement
The intergovernmental agreement between France and Germany concerning co-operation on
restrictive business practices was entered into in 1984.  It was agreed that the authorities responsible
for competition would notify each other of the institution of proceedings under competition law whichmight affect the interests of the other party.  The agreement also provides for information to be
furnished on restrictive business practices at the request of the other party's competition authority, and
for the authorities to co-operate in all areas of competition law and consult each other in cases of
recognised mutual interest.  In 1994 the scope of application of this agreement was extended to cover
cases subject to European Community law by the exchange of identical letters.
(3) Experience with the two agreements
The instruments of co-operation (e.g. with regard to the exchange of information) based on
the agreements do not differ from those available under the Council Recommendation for the
co-operation with other OECD members.  The ex change of experience and knowledge between the
respective parties is regular and comparatively intensive, however.  On the other hand, similar close
contacts exist between Germany and other countrie s with whom no agreements have been entered
into. In particular, it should be pointed out that the agreements do not serve as a basis for the exchangeof business secrets and other confidential information, and that there is no obligation to employ
compulsory powers.WT/WGTCP/W/34
Page 30
B. The OECD Council Recommendation
Based on the 1995 OECD Council Recommenda tion concerning co-operation between
member countries on anti-competitive practices affecting international trade, the Bundeskartellamt
furnishes information to, or receives information from, the competition authorities of the other OECD
member countries on proceedings pending (inter alia enterprises concerned, subject matter and stage
of proceedings) which affect or are expected to affect important interests. In 1996 notifications filedor received totalled 24, and in the first six months of 1997 the figure was 28.
C. Mutual Assistance in Cartel Proceedings
The German Act on Mutual International Assist ance in Criminal Matters (Bundesgesetz zur
Internationalen Rechtshilfe in Strafsachen) enable s the Bundeskartellamt, in conjunction with the
Federal Ministry of Economics, to provide legal assistance in other countries' antitrust proceedings.
Such proceedings are subject exclusively to domestic procedural law.  In 1997, an enterprise was
searched and documents were seized for a country requesting legal assistance.  A subpoena was alsoserved on a citizen for court proceedings in the country requesting assistance.  Both proceedings are
now pending before German courts.  In additi on, Germany complied with a request to have the
Bundeskartellamt hear a witness in the presence of a foreign investigating officer. In return,
exemption from punishment by the foreign antitrust authority was envisaged.
D. Cooperation with Other Competition Authorities
There are close contacts between staff members of the Bundeskartellamt and the competition
authorities of other countries.  Meetings are held on a regular basis between the head of the
Bundeskartellamt and those of the competition authorities in France and the United Kingdom.
Members of other competition authorities gain a practical insight into the day-to-day work of the
Bundeskartellamt on the basis of visits, which may range from one week to six months.  Since thebeginning of 1996, for example, the Bundeskartellamt has received staff from the United Kingdom,
Finland and the Netherlands.  The Bundeskartellamt, too, has seconded staff to partner authorities on
fact-finding missions.  In addition to the PHARE programme mentioned in the EU Commission's
remarks, the Bundeskartellamt hosts delegations from abroad, or sends staff to provide on-the-spot
technical assistance.  Such assistance is offered in accordance with specific requests and may rangefrom assistance in the preparation of a competition act to help with case-specific issues.  Technical
assistance is funded by third parties, for example, by German foundations, the Development Loan
Corporation, or the OECD.  Since 1996 requests for technical assistance have come inter alia from
Argentina, Brazil, Bulgaria, Costa Rica, El Salvador , Estonia, Latvia, Lithuania, Mongolia, Pakistan,
Peru, Poland, Rumania, the Russian Federation, Zambia, the Czech Republic, Ukraine, Vietnam andthe People's Republic of China.
E. International Conference on Competition
Every other year, the Bundeskartellamt holds its International Conference on Competition. In
1995 it was attended by over 200 participants from 37 countries as well as representatives of the EU,
OECD and UNCTAD. This year the 8th International Conference on Competition will be held on 27
and 28 October. The topic of the conference is: "Problems of competitive entry to network
infrastructure industries".WT/WGTCP/W/34
Page 31
GREECE
I. THE GREEK COMPETITION ACT - ( N.703/77  - On the Control of Monopolies and
Oligopolies and the Protection of Free Competition )  is applicable to horizontal as well as to vertical
agreements and follows in general the approach of the Community Competition Law.
Article 1 of the Greek Act is based on the prohibition principle and resembles Article 85.
Article 2 deals with the problem of abus e of a dominant position, like Article 86.
Public undertakings,utilities and agricultural and transport undertakings are subject to the
provisions of the Greek Competition Act (Article 5).
I.1 Article 1(1) of the Greek Competition Act provides that:
The following shall be prohibited: all agreements between undertakings, all decisions by
associations of undertakings and concerted practices of whatsoever kind, which have as their object or
effect the prevention, restriction or distortion of competition, 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 impeding competition in particular by refusing without valid justification to
sell, purchase or conclude any other transaction;
(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.
I.2 For Article 1(1) to be applicable two conditions must be fulfilled:
(a) there exists an agreement, decision or concerted practice between undertakings or
associations of undertakings;
(b) which has as its object or effect the prevention, restriction or distortion of
competition.
I.3 Agreements, decisions and concerted practices falling within the provisions of paragraph 1 of
Article 1 must be notified by the undertakings concerned to the Competition Committee in order to begranted either a negative clearance as not falling w ithin its provisions, or an individual exemption  if
they cumulatively fulfil the following conditions:
(a) they contribute 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;
(b) they do not impose on the undertakings concerned, restrictions which are not
indispensable to the attainment of the aforementioned objectives;WT/WGTCP/W/34
Page 32
(c) they do not afford such undertakings the possibility of eliminating competition in
respect of a substantial part of the relevant market in question.
I.4 There are no special provisions as far as agreements between SME’s are concerned.  In the
Greece no block exemptions have been adopted while there is no certain provision establishing a limit
of minor importance ( de minimis rule ).  According to Art.8a of the Greek Competition Act such
decisions can be issued but the provisions of this Article have not been  utilized yet.  In general the de
minimis rule  is only serving as guidance - with no established criteria of any nature - and is always
applied on a case by case basis.  The Community block exempting regulations have been applied as
guidelines /framework  in  various decisions taken by the Greek Competition Committee.
I.5 Pre-Merger Control
There is a  general merger control procedure for all the sectors of the  economy.  Under this
regime, concentrations of undertakings are not «  per se»  prohibited as anti competitive since the
Competition Committee decides on a list of criteria -indicatively stated in the Law-whether a certainconcentration can lead to an impediment, restricti on or distortion of competition.  A concentration that
has been prohibited may be approved by a justified decision of the Ministers of National Economy
and Commerce on the grounds of public and general economic interest.  The jurisdictional criteria and
the respective thresholds provided for the merger control procedure  are as follow:
(i) Post notification
All concentrations of undertakings should be notified to the Competition Committee within
one month from their entering into effect where:
• the combined market share in the national market or in a significant part thereof
represents at least 10 % of the aggregate turnover in the relevant product market;  or
• the combined aggregate turnover of the participating undertakings amounts at least to
the equivalent of 10 m ECU in Greek drachmae.
(ii) Prior notification
All concentrations of undertakings should be notified to the Competition Committee within
10 working days where:
• the combined market share in the national market or in a significant part thereof
represents at least 25% of the aggregate turnover in the relevant product market;  or
• the combined aggregate turnover of the participating undertakings amounts at least to
the equivalent of 50m ECU in Greek drachmae and the aggregate turnover in the
national market of each of at least two of the participating undertakings is more than
the equivalent of 5m ECU in Greek drachmae. Both post notification and priornotification of concentrations are obligatory where the thresholds mentioned above
under points (i) and (ii) are met.WT/WGTCP/W/34
Page 33
II. IMPLEMENTING PROVISIONS
The Competition Committee is the sole competent authority for the observance of the
provisions of the Greek Act.703/77 On the control of Monopolies and Oligopolies and the protection
of free competition.
The Competition Committee is the National Competition Authority, competent for the
cooperation:
• with the competition authorities of the Commission of the European Union providing
the necessary assistance to its authorized officials in carrying out investigations
provided by the community law;
• with the competition authorities of other countries;
• with the various international organizations.
Where an undertaking, which has its headquarters or exercises its activity in Greece, opposes
an investigation ordered pursuant to community provisions, the Competition Committee and itsauthorized officials, upon its own initiative or u pon the request of the authorized officials of the
Commission, shall take all the necessary measures for the normal conduct of the investigation
especially by providing the necessary assistance according to the provisions of Article 26 of the
present Act.
The Competition Committee and its Secretariat(i.e the administrative staff) shall perform the
tasks  which have been assigned to the national authorities of the member states by Articles 88 and 89
of the Treaty establishing of the European Economic Community; as well as, by Regulations pursuant
to Article 87 of the same Treaty in conjunction with other enabling provisions of the Treaty. To
perform these tasks the Competition Committee and its Secretariat shall have the powers granted to
them for the application of the present Act.
III. ENFORCEMENT STAFF
The Greek Competition Committee has been established as an Independent Authority since
May 1995.  The Competition Committee is administratively independent and is supervised by the
Minister of Commerce.  The Competition Committee is composed of nine members:
(1) an active member or an ex-member of the Legal Council of State;
(2) a judge of the highest rank or an ex-judge of the Courts of Civil Justice;
(3) a representative of the Association of Greek Industries;
(4) a representative of the National Confederation of Trade;
(5) a representative of the General Confederation of Small- and Medium-Sized Firms;
(6) a representative of the National Consumers' Council;(7) a member from the faculty of a Greek University Department;
(8) a member from the faculty of a Greek University Department;  and
(9) a person of recognized status with experience in the competition field.
The Members of the Competition Committee and their deputies under cases (7), (8) and (9)
are appointed by the Minister of Commerce.  The President, the members of the Competition
Committee and their deputies shall be appointed by decision of the Minister of Commere, for a three-
year period which can be renewed.WT/WGTCP/W/34
Page 34
IV. ENFORCEMENT (YEAR 1996)
Cases
enteredCases
handledDecisions
taken
1. Agreements 9 2 2
2. Complaints 17 7 7
3 . M e r g e r s 6 26 26 2
4. Provisional
measures222
TOTAL 90 73 73
V. SANCTIONS FACED BY FIRMS
Articles 4a (par.4), 4b (par.4) and 4e (par.4) for the merger control cases.
Article 9 for the antitrust cases
Article 29 general penal sanctions
VI. RIGHTS OF FOREIGN FIRMS
All firms have the same rights to make complaints to the Greek Competition Authority and to
appeal against its decisions. The procedure that firms have to follow does not vary according to their
nationality. The same applies for the cost of any action brought before the Competition Committee.
Any action (complaint-notification) must be made via a legal representative (lawyer).
VII. AGREEMENTS WITH THIRD COUNTRIES
There are no agreements with third countries regarding the application of competition laws or
in general  cooperation in competition matters.
IRELAND
1. National Competition Law
• Competition Law in Ireland is governed by the Competition Acts of 1991 and 1996.
• The 1991 Act was enacted as an Act analogous in Articles 85 and 86 of the Treaty.  However
the law applies only in Ireland -  references to the phase “in the state” are made in Sections 4
and 5 of the 1991 Act which set out the rules of Competition in regard to anti-competitive
agreements, decisions and concerted practices and abuse of a dominant position.  There is no
list of per se prohibitions in the Acts - it is a matter for the Courts to determine if there has
been a breach of Competition Law.
• Irish Competition Law applies to every section of the economy.WT/WGTCP/W/34
Page 35
However there is one exception in that the low cost selling of Groceries  is covered by the
Groceries Order of 1987.  (The Groceries Order covers all grocery goods with the exception of fresh
fruit, fresh vegetables, fresh and frozen meat and fish as well as intoxicating liquor and other
household goods ordinarily sold in grocery shops.  The Groceries Order prohibits practices such as
below cost selling, boycotting and hello money and controls terms and conditions of supply.  It is
policed by the Director of Consumer Affairs).
2. Implementation
• The Irish Competition Authority is responsible for the implementation of Competition Law in
Ireland.
• Under the 1991 Act the main role of the Irish Competition Authority was in relation to the
granting of certificates and licences under Section 4.
• Prior to the implementation of the 1996 Act, enforcement was a matter for private individuals
who could take Action under Section 6 (Right of Action) of the 1991 Act.
• The 1996 Competition Act introduced public enforcement and arising from its enactment an
enforcement section was created in the in the Competition Authority and a Director of
Competition Enforcement was appointed.   In addition to the Director of Competition
Enforcement there is provision for professional staff - five economists and a legal adviser on
enforcement in the Irish Competition Authority.
• The 1996 Competition Act also introduced criminal offences for breaches of Competition
law.  Undertakings are liable to summary prosecution or prosecution on indictment.
• The Competition Act of 1996 came into force on 3rd July (1996) and no cases in regard to
Competition matters were taken by the Competition Authority in that year.  However since
the implementation of the Competition Act the Competition Authority has been involved in anumber of cases where they carried out raids on the premises of undertakings.  Such raids
have served to publicise the activities and powers of Competition Authority and serve as a
warning to firms in regard to Competition matters.
3. Sanctions
• Sanctions range from fines not exceeding £1,500 and/or up to 6 months imprisonment in the
case of summary conviction to fines up to £3m or 10% of turnover which ever is the greater
and/or 2 years imprisonment in the case of conviction on indictment.
4. Rights of Firms or Individuals
• Any firm or individual has a right of action against anti competitive activity being pursued by
other firms or individuals.  In addition, individuals or firms have a right to complain to theDirector of Competition Enforcement in regard to any anti competitive activity which is
taking place in the state.  Arising from such complaints, the Director of Competition
Enforcement, following investigation, may take appropriate action.
5. Agreements with Third Countries
• Ireland does not have any agreements with third countries in regard to the implementation
with Competition Law.WT/WGTCP/W/34
Page 36
ITALY
I. THE ITALIAN COMPETITION LAW AND THE ANTITRUST AUTHORITY
The Italian competition law was enacted by law no.287 of 10 October 1990 (the Competition
Act), which also instituted the Antitrust Authority, a public agency, independent of the Government
and the Parliament.
The Antitrust Authority has a general competen ce for enforcing the Competition Act, and in
particular for monitoring certain behaviours of companies (both private and public), namely
(a) agreements that impede or restrict competition, (b) abuses of dominant position, (c) mergers and
acquisitions which create or strengthen a dominant position with the effect of eliminating or
restricting competition. The Bank of Italy is responsible for enforcing the sections of the
Competition Act relating to agreements, abuses of dominant position and mergers and acquisitions
which involve banks.  In such cases, a prior non-binding opinion of the Antitrust Authority is required
by the law.
The Law no.52 of 6 February 1996 entitles the Antitrust Authority to enforce directly the
Articles 85, paragraph 1, and 86 of the EC Treaty, using the powers and procedures provided for the
enforcement of the Competition Act.
The Antitrust Authority has also consultative powers towards the Parliament and the
Government. It may notify them about any existing or draft rules or measures that introducerestrictions on competition without justification in terms of the general interest (Sections 21 and 22 of
the Competition Act).  Moreover, pursuant to Section 24, the Authority is entitled to carry out general
fact-finding investigations into markets or particular sectors in which competition seems to be
impeded. So far, the Antitrust Authority has utilized such advisory and general fact-finding powers in
a large number of cases, covering almost all the economic sectors.
The Antitrust Authority is also responsible for ruling on misleading advertising, under a
Legislative Decree no.74 of 25th January, 1992, which was issued to implement a specific
Community Directive.
II. THE SUBSTANTIVE RULES
The substantive rules of the Competition Act are drafted on the basis of those contained in the
European Community Law, namely, Articles 85, 86 and 90 of the EC Treaty and Article 2 of the
Regulation no.4064/89 on merger control.
1. Agreements that Impede or Restrict Competition and Exemptions
Sections 2 and 4 of the Competition Act rule on the anti-competitive agreements and the
relevant exceptions; their wording is quite similar to Article 85 of the EC Treaty.
Section 2 forbids any kind of agreement, in broad sense (including also concerted practices,
resolutions adopted by associations of companies and consortia), through which several undertakings
may deliberately act jointly to coordinate their conduct on the market.
The rule prohibits all the agreements between undertakings, either operating in the same
phase (horizontal agreements) or in successive phases of the production process (vertical agreements),
which reduce (or could potentially reduce) substantially competition within the Italian market or in a
substantial part of it. In such evaluation, the Antitrust Authority follows an economic analysisWT/WGTCP/W/34
Page 37
(without relying only on the formal aspects of the agreements examined) in order to ascertain the real
economic impact of the agreement in the relevant market  and, in particular, if they restrict competition
on the market in a significant way.  To this end, after having carefully defined the relevant market
(both under a product and geographical perspective), a major effort is devoted to the analysis of the
structure of such market, taking into considerat ion, in particular, the number and position of the
interested parties as well as of the other undertakings, the possibility to enter the market, the durationof the agreement and the possible cumulative effects of networks of similar agreements in the market.
In this perspective, it may be pointed out that the Competition Act, as applied in the practice
of the Antitrust Authority, does not contain any “per se condemnation rule”  with reference to certain
kind of agreements such as, for instance, horizont al price-fixing and market-sharing or vertical
distribution restrictions and resale price maintena nce (with imposition of minimum price).  Even with
respect to these kind of agreements, which are often qualified as “hard core” restrictions, in order to
evaluate whether they are anti-competitive it must be evaluated the economic impact on the market,on a case by case basis.  This economic-based approach is consistent with the case-law of the
European Court of Justice.
Once such an impact is appraised by the Antitrust Authority, it states such behaviours
unlawful and forbidden, intimating the interested und ertakings to cease that conducts. In addiction,
due to the gravity of hard core restrictions, the Antitrust Authority usually imposes sanctions to theundertakings involved.
Section 2 of the Competition Act reads as follows:
Agreements restricting freedom of competition
"1. The following shall be regarded as agreements; accords and/or concerted practices between
undertakings, and any decisions, even if adopted pursuant to their Articles or Bylaws, taken by
consortia, associations of undertakings and other similar entities.
2. Agreements are prohibited between undertakings which have as their object or effect
appreciable prevention, restriction or distortion of competition within the national market or within
a substantial part of it, including those that:
(a) directly or indirectly fix purchase or selling prices or other contractual conditions;
(b) limit or restrict production, market outlets or market access, investment, technical
development or technological progress;
(c) share markets or sources of supply;
(d) apply to other trading partners objectively dissimilar conditions for equivalent
transactions, thereby placing them at an unjustifiable 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.
3. Prohibited agreements are null and void."
The Antitrust Authority is empowered to exempt agreements which restrict competition and
may authorize them for a given period of time, when the conditions set forth in Section 4 are met
(such conditions are very similar to those of Article 85, paragraph 3, of the EC Treaty). In order to
qualify for an exemption, the companies concerned must show that the agreements improve supplyWT/WGTCP/W/34
Page 38
conditions on the market, that the limitations on competition are absolutely necessary in order to
obtain these positive effects, and that the improved conditions of supply bring a substantial benefit to
consumers (for example, by reducing prices or providing a good or service which would not otherwise
be available).
Section 4 of the Competition Act reads as follows:
Exemption from the prohibition of agreements restricting competition
1. The Authority may authorize, for a limited period, agreements or categories of agreements
prohibited under section 2 which have the effect of improving the conditions of supply in
the market, leading to substantial benefits for consumers.  Such improvements shall be
identified taking also into account the need to guarantee the undertakings the necessary
level of international competitiveness and shall be related, in particular, with increases of
production, improvements in the quality of production or distribution, or with technical and
technological progress.  The exemption may not permit restrictions that are not strictlynecessary for the purposes of this subsection, and may not permit competition to be
eliminated in a substantial part of the market.
2. The Authority may subsequently, after giving notice, revoke the exemption referred to in
subsection (1) in cases where the party concerned abuses it, or when any of the conditions
on which the exemption was based no longer exist.
3. Requests for exemption shall be submitted to the Authority, which shall avail itself of the
powers of investigation referred to in section 14 and decide within a period from 120 days
of the date on which the application is filed.
2. Abuses of Dominant Position
Section 3 of the Competition Act forbids the abuse of dominant position by one or more
undertakings.  Also this rule is similar to the corresponding rule of the EC Treaty (Article 86).
The law does not prohibit a dominant position as such, but it places restrictions on the
possible behaviour of an undertaking occupying a dominant position on the relevant market.  It is
prohibited for one or more undertakings to abuse a dominant position on the national market or a
substantial part of it.
As Article 86 of the EC Treaty, Section 3 does not indicate when a dominant position is
reached. In light of the case-law of the European Court of Justice, the Antitrust Authority defines a
dominant position as a situation such that a single firm accounts for most of the sales in a given
market and, because of the economic features of that market and eventual institutional constraints, the
possibilities for other competitors, actual or potential, to react to its conduct are quite limited.
Section 3 does not contain an exhaustive list of abusive behaviours;  it just indicates the main
examples of abuse, such as charging prices or imposing terms and conditions which are unjustifiably
burdensome or acting in such a way as to impede market access by other competitors or as to induce
them to abandon their activity and exit the market.WT/WGTCP/W/34
Page 39
Section 3 reads as follows:
Abuse of a dominant position
1. The abuse by one or more undertakings of a dominant position within the domestic market
or in a substantial part of it is prohibited.  It is also prohibited:
(a) directly or indirectly to impose unjustifiable burdensome purchase or selling prices
or other contractual conditions;
(b) to limit or restrict production, market outlets or market access, investment,
technical development or technological progress;
(c) to apply to other trading partners objectively dissimilar conditions for equivalent
transactions, thereby placing them at an unjustifiable competitive disadvantage;
(d) to 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.
3. Operations of Concentration (Mergers and Acquisitions)
Sections 5, 6 and 16 of the Competition Act rule the antitrust control over the operations of
concentration. Also this discipline resembles, under many aspects, the EC Merger Regulation.
According to Section 5, a concentration may occur when one company merges with another
or acquires control over another company or part of it, enabling it to exercise a decisive influence on
its operations. It also includes cases of two companies pooling their activities by setting up a joint
venture, controlled by both of them. However, jo int ventures which may coordinate the actions of
parent companies (so-called “cooperative joint venture”) are not considered as operations of
concentration, as in the Community Law until the recent enactment of the EC Regulation no.1310/97
of 30 June 1997 amending the EC Merger Regulation.
Source of concern, under an antitrust perspective, is that a merger or an acquisition of another
undertaking which was previously independent might substantially reduce competition in the relevant
markets on a lasting basis, and hence put the interested undertakings in the position to exploit their
market power, by raising prices or imposing other conditions that are detrimental to consumers.
Section 16 provides that concentrations which meet one of the two thresholds provided
therein have to be notified in advance to the An titrust Authority.  The thresholds are based on the
national turnover of the undertakings involved and are updated each year to take account of inflation.
In particular, under Section 16 the concentrations are subject to prior notification, alternatively, if the
gross turnover of the acquired company exceeds 50 billi on lire, or if the gross turnover in Italy of all
the companies involved exceeds 500 billion lire.  In May 1997, these thresholds were raised
respectively to 67 and 671 billion lire.  A new pre-merger notification Form has come into force on1 July 1996.
The Antitrust Authority examines all of the operations notified in terms of their effects on
competition. In case it results that a particular concentration creates or strengthens a dominant
position to the extent that it reduces competition substantially and on a lasting basis, the Antitrust
Authority is entitled either to prohibit the operation or authorize it, provided that the original project isamended by the parties in order to remove the distortive aspects.WT/WGTCP/W/34
Page 40
Such a control is carried out through a two-pha se-procedure, as in the EC Merger Regulation.
In the first phase, which starts from the notification, the Antitrust Authority must decide if the
concentration at issue may infringe Section 6. Only in such a case, the second phase is started.
Sections 5 and 6 of the Competition Act read as follows:
Section 5
Concentrations
1. A concentration shall be deemed to arise when:
(a) two or more undertakings merge;
(b) one or more persons controlling at least one undertaking or one or more
undertakings, acquire the direct or indirect control of the whole or parts of one or
more undertakings, whether through the acquisition of shares or assets, or by
contract or by any other means;
(c) two or more undertakings create a joint venture by setting up a new company.
2. Control of an undertaking shall not be deemed to have been acquired in the case of a bank
or financial institution which acquires shares in an undertaking when constituted, or when its share
capital is raised, with a view to re-selling them on the market, provided that it does not exercise any
voting rights vested in those securities while it holds them; in no case the holding period shallexceed 24 months.
3. Operations which have as their main object or effect the coordination of the actions of
independent undertakings shall not constitute concentrations.
Section 6
Prohibition on concentrations restricting free competition
1. The Authority shall appraise concentrations subject to notification under section 16, to
ascertain whether they create or strengthen a dominant position on the domestic market with the
effect of eliminating or restricting competition appreciably and on a lasting basis.  This situation
shall be appraised taking into account the possibilities of substitution available to suppliers and
users, the market position of the undertakings, the access conditions to supplies or markets, thestructure of the relevant markets, the competitive position of the domestic industry, barriers to the
entry of competing undertakings and the evolution of supply and demand for the relevant goods or
services.
2. Whenever the investigation under section 16(4) shows that the operation entails the
consequences referred to in subsection (1) the Authority shall either prohibit the concentration orauthorize it laying down the necessary measures to prevent such consequences.
III. THE PROCEDURAL RULES
1. Investigation Procedures and Right of Defence
According to the Competition Act, the Antitrust Authority may start an investigation over
companies behaviours which are deemed to be anti-competitive in different ways, i.e. following a
complaint of a company (that considers that its interests are being damaged by that conduct), a publicWT/WGTCP/W/34
Page 41
agency or private individuals. The Authority may also initiate its own investigations ex officio
(without any formal complaint).
As said under point II.3, the operation of concentrations above the thresholds set forth in
Section 16 have to be notified in advance to the Antitrust Authority by the companies participating to
the transaction. In case of failure, the Authority may impose fines.
The Antitrust Authority decides, in each case, whether it is appropriate to carry out a more
thorough investigation.
A pre-merger notification Form and a Form for the notification and/or the exemption from
prohibition of agreements, published on 1 July 1996, provide the necessary information to increase
the speed and accuracy of the Antitrust Authority’s appraisal.
Once the Antitrust Authority, after a preliminary examination of the case, decides to carry out
a full investigation, the undertakings directly concerned (either national or foreign) are notified.  They
are entitled to make representations and to see any documents relating to the investigation which arenot confidential.  At the end of the investigation, the parties receive the so-called “statement of
objections” in which the alleged violations and relevant evidence are presented.  After having
received the “statement of objections”, the parties are invited to attend a final hearing, in which all the
findings and evidence collected during the investigation are discussed in the presence of the five
Members of the Authority.
The parties may make written submissions throughout the investigation and for a short period
of time after the final hearing.
After having heard the representations of the parties at the final hearing, the Antitrust
Authority takes the final decision at a later, separate meeting.  The decision is taken by a majority
vote.
During the course of the investigation, the An titrust Authority may require all the information
deemed necessary to appraise the case.  These info rmation may be requested directly to the parties to
the case or asking the collaboration of other Government departments and agencies.  Experts in the
subject matter may be appointed by the Authority.  The latter may also decide to carry out on-site
inspections in order to make copies of compan y documents, if necessary with the co-operation a
special branch of the police responsible for financial and fiscal violations.
All such investigation activities as well as the information obtained are covered by
confidentiality.
The control over the concentrations notified to the Antitrust Authority is carried out through a
two-phase-procedure.  Within a mandatory deadline of 30 days from notification, the AntitrustAuthority must decide whether to initiate an in -depth investigation.  The second phase has to be
completed within 45 days.
In the case of investigations dealing with restrictive agreements and abuses of dominant
position, the Authority itself generally sets the deadlines.
2. Sanctions
When an abuse of dominant position or an agreement restricting competition is ascertained,
the Antitrust Authority may fine the companies involved, depending on the seriousness of the offence,an amount set on the basis of the gross turnover of the companies.WT/WGTCP/W/34
Page 42
If the parties concerned fail to desist from the unlawful behaviours after the decision taken by
the Antitrust Authority, further fines may be imposed. In the event of repeated offences the Authority
may also order the company to cease operations for a period up to 30 days. Other fines are also
imposed when the information requested is either untruthful or not provided.
In the case of mergers and acquisitions (above the thresholds of Section 16) that have already
taken place and which the Authority deems to limit competition on the basis of its findings, thecompanies concerned may be ordered to adopt the necessary measures to restore preceding situation.
These sanctions have an administrative nature. No criminal penalties are provided under the
Competition Act. The companies or persons which suffered damages due to anti-competitive practices
may sue the company which took such behaviours before ordinary courts.  The latter, upon request of
the interested parties, can also grant provisional remedies.
3. Appeal Against Decisions
The interested parties may appeal against the decisions taken by the Antitrust Authority
before an Administrative Court of first instance placed in Rome, within 60 days.  That Court’s rulings
may themselves be subject to appeal to the Supreme Administrative Court, the “State Council”, in
Rome.
Both these courts may judge if the Competition Act has been applied correctly by the
Antitrust Authority, taking into consideration the motivation of its decisions.  Upon request of theinterested parties, these courts can also suspend the effectiveness of the decisions even before a final
judgment is taken.
III. ENFORCEMENT STAFF AND ACTIVITY
1. Staff
As of July 1997, the Antitrust Authority employs about 90 experts for enforcing the
Competition Act and the legislation over misleading advertising (administrative staff excluded).
2. Activity and Sanctions
In 1996, as indicated in the last Annual Report (April 1997), in implementing the Competition
Act the Antitrust Authority has concluded 24 investigations concerning restrictive agreements,
10 investigations concerning abuses of dominant position. In addition, the Authority ruled on357 operations of concentration.
Sixteen agreements were ruled to be in violation of Section 2 of the Competition Act; in one
of these cases, the Authority granted an exemption pursuant to Section 4.  In 3 cases, sanctions were
charged to the companies involved. The total amount of sanctions applied in these procedures was
2,134 million lire.
Seven abuses of dominant position were ruled to be in violation of Section 3 of the
Competition Act; in 2 cases sanctions were charged to the liable companies.  The total amount of such
sanctions was 452 million lire.
With reference to 3 operations of concentration the Antitrust Authority carried out the
second-phase-investigation.  All of them were cleared following to the acceptance of specific
commitments by the parties to the concentration.  In 11 cases the Authority applied sanctions to
companies which failed to comply with the duty of prior notification of concentrations.WT/WGTCP/W/34
Page 43
3. Agreements with Third Countries in Antitrust Matters
So far the Antitrust Authority has not concluded specific cooperation agreements with
competition authorities of other countries.  However, in many occasions it had collaborated with some
of them on the basis of the provisions of the OECD Recommendation of July 1995.
LUXEMBOURG
I. DESCRIPTION OF THE LUXEMBURGISH LAW
The law of 17 June 1970 concerning the restrictive commercial practices amended by the law
of  19 November 1975 and the law of 20 April 1989 is applicable to situations affecting the domestic
market, both to national and foreign undertakings.
A law of 2 September 1993 contains the conditions required for the  application:
- of the law of 17 June 1970 as amended;
- of the regulation n°17 of the European Community;
- of the EC Regulation n°4064/89 of 21 December 1989.
The law 1970 contains very general terms, quasi  identical with Articles 85 and 86 of the Rome
Treaty.
For instance, Article 1 provides that:
« Are subject to sanctions:
(1) all agreements between undertakings, decisions by associations of
undertakings, decisions by associations of undertakings and concerted
practices which have as their object or effect the prevention, restriction or
distortion of competition within the market and which may affect the public
interest;
(2) any abuse by one or more undertakings of a dominant position within the
market and which may affect the public interest »
Article 2 provides for some exceptions to the applicability of Article 1.  In particular,
agreements  between undertakings, decisions by associations of undertakings and concerted practices
are not subject to sanctions « if the parties can justify that they contribute to increase the production or
the distribution of products or to improve the technical or economical progress and that they complywith the interest of the users. »
Specific prohibited conducts are not defined by the Law, but an exemplative list of prohibited
conducts is given by the Parliamentary Documents (n°1236) of the Law.
Various specific laws regarding prices also prohibit some behaviours.
The law of 27 November 1986 which regulates some commercial practices and prohibits
unfair competition contains some provisions which could apply to certain restrictive commercial
practices.WT/WGTCP/W/34
Page 44
No special control on mergers and acquisitions has been established yet.
II. CONSEQUENCES OF ANTITRUST LAW VIOLATIONS
After having taken a decision following the proceedings of the Law 1970, the Minister of
Economics is entirely free to adopt the opinion given by the Commission of restrictive commercial
practices or not.  All possible measures can be taken: going from a simple recommendation to a
condemnation to cease the unlegal practice.
On the other hand, the undertakings which have suffered a loss due to an antitrust violation
have the possibility to bring a common law action before the civil courts  to obtain damages.
The law 1970 even provides  criminal penalties :
Indeed, Article 8 paragraph 2 says that the owners, managers or directors of an
undertaking which has been convicted, by the ministry of Economics, of an
infringement to the provisions of Article 1, are punished by imprisonment for a term
between eight days and one year and/or by a fine of between ten thousand to onemillion Luxembourg francs without prejudice to other penalties provided by the
criminal code or other legal provisions.
III. IMPLEMENTATION
According to the Law of 2 September 1993, civil servants may be delegated to certain
missions in accordance with the Law of 17 June 1970 as amended.  The number depend on the affairspending before the « Commission of  restrictive commercial practices ».
In 1996 the Commission seized by the Minister of Economics has been analysing one single
affair  about an supposed dominant position of an undertaking on the market of collecting and
eliminating problematic scraps (waste) produced by small and medium sized firms in Luxembourg.
The Minister finally decided not to apply any sanctions, because the practice couldn’t be qualified asan abuse of a dominant market concerned.
For the implementation no difference is made between national and foreigners.
No bilateral agreements with third countries on the implementation on competition law has
been concluded by Luxembourg.
THE NETHERLANDS
Introduction
The Competition Act, which will come into force on 1 January 1998, will replace the Economic
Competition Act.  This Bill prohibits competition agreements and the abuse of dominant positions.
The criterion in the Bill for the application o the prohibitory provisions is not the legal form of the
competitive restraint, but its nature.  Competition is desirable but certain forms of cooperationbetween undertakings can also lead to benefits for the society.  For that reason, the Bill contains a set
of exemptions and the possibility of dispensation.  The Bill also contains a bagatelle provision, the
purpose thereof is to exempt competition agreem ents which are of clearly minor significance on
competition.  The new Bill introduces control of concentrations.WT/WGTCP/W/34
Page 45
Because of the proceeding integration of European markets, the provisions in the Bill are
based on those of the EC Treaty.  The Bill applies to undertakings within the meaning of Articles 85
and 86 of the EC Treaty.  The term "undertakings" covers all entities that take part in the economic
process aimed at the production or distribution of goods or the provision of services.  This replies
regardless of that entity's legal form or method of financing, and regardless of whether it has a profit
motive.
Principles of the Competition Act
- the Bill prohibits competition agreements and the abuse of dominant positions;- it also provides for a form of control of concentrations;
- the enforcement under criminal law is replaced by enforcement under administrative
law, which means by the "Nederlandse Mededingingsautoriteit (NMa;  Dutch
Competition authority)".  The NMa is comparable with the Bundeskartellamt.
Scope
The formulation of the prohibition of agreements, decisions and concerted practices in the
Bill corresponds as far as possible to Article 85, Clause 1 of the EC Treaty.  The prohibition covers
agreements between undertakings, within the meaning of Article 85, Clause 1, of the EC Treaty.
There are few exemptions:
- If at least one undertaking that is entrusted with the operations of general economic
interest, by law or by an administrative agency, the prohibition of agreements shall
apply only as far as the application of the concerning Article does not prevent the
performance of the special tasks entrusted to such undertakings.
- By general administrative order, the prohibition Article may be declared inapplicable
to such categories of agreements on conditions derived from Article 85, Clause 3 ofthe EC Treaty.
- The prohibition Article shall not apply to agreements which are subject to the
approval of, or an be declared invalid, pr ohibited or nullified by an administrative
agency pursuant to the provisions of any other Act, or which have arisen pursuant to
any statutory requirement.  This exemption will expire five years after the Bill hascome into force.
Main Differences with Community Law
- Bagatelle provision:  the limits are:  maximum eight enterprises involved, and a
combined turnover of less than Hfl 10 million (for trading goods) or Hfl 2 million (in
all other cases);
- the Minister of Economic Affairs can lay down instructions to the director general
(head) of the NMa.  Those instructions can be general or apply to individual cases;
- the Bill contains an exemption for concentrations in the financial sector.  This
exemption will expire two years after the Bill has come into force;
- the director general of the NMa may declare inapplicable the prohibition of abuse of a
dominant position by undertakings with special or exclusive rights;WT/WGTCP/W/34
Page 46
- by general administrative order are exempted agreements in the retail sector
concerning the fixing of maximum prices during an advertisement campaign, if this
campaign has a maximum duration of eight weeks;
- by general administrative order are exempted minimum purchase obligations in
franchise agreements if the central organization has a financial claim on the retailer
because of financing or credit or financial guarantees;
- by general administrative order newspapers are temporarily exempted.  This is done
to give the sector an opportunity to get used to a situation in which there is more
competition between newspapers than in the past;
- by general administrative order are exempted combined tender agreements.  This
allows undertakings to apply together to tenders;
- by general administrative order are exempted agreements between exploitants of
shopping malls and shopkeepers which guarantees that during the first exploitationyears of the shopping mall there will not be established a comparable shop.
The prohibition does not apply to agreements between undertakings for which dispensation
has been granted pursuant to Article 85, Clause 3 of the Treaty.
Enforcement
The Bill is based on a prohibition system.  Two means were chosen for its enforcement:  via
civil law and via administrative law.  A prohibition system means that agreements subject to the
prohibition, for which no dispensation has been granted, are legally null and void.  The nullity of
prohibited competition agreements can serve as grounds  for action in a civil court.  The same applies
for the nullity of concentrations realised in contravention of the notification and permit requirements.
In addition, it is possible to sue on the grounds of unlawful action and to claim compensation fordamages in the event of violations of the prohibition of competition agreements, of abuse of dominant
positions or non-compliance with the said notification and permit requirements for concentrations.
Apart from civil law, the Competition Act will also be enforced by administrative law, that is by an
administrative agency (i.e. the NMa) with the aid of administrative law sanctions.  The NMa is an
independent organization and is lodged in a separate building at some distance (a few miles) of theMinistry of Economic Affairs.
Implementation
- enforcement staff:  70 (including about 10 administrative staff members)- number of cases treated during 1 July 1996 to 1 July 1997:  75.  This concerns only
antitrust cases because the Economic Competition Act (to be replaced by theCompetition Act on 1 January 1998) does not contain concentration control.  This
number also includes cases which have been lodged before 1 July 1996
- number of times that sanctions have been applied:  3
- number of cases closed:  42
- there are no bilateral Dutch agreements with third countries regarding competitionWT/WGTCP/W/34
Page 47
Rights of Foreign Firms Under Competition Laws
The Dutch regulations on economic competition are being revised.  The new Competition Act
will probably take effect as of 1 January 1998.  The answers of the Netherlands below are given on
the basis of this new act.
The Competition Act is based on a prohibition system, that corresponds with the competition
rules of the European Union as far as possible.  The competition authority is called the NMa(Nederlandse Mededingingsautoriteit, Dutch Competition Authority).
1. Rights of Foreign Firms in Dutch Courts
There is no difference in the treatment of foreign or domestic firms who wish to take action
directly in national courts under the competition laws.  If the interests of third parties are affected by
infringements of the provisions of the Competition Act, the civil courts are competent to rule in such
cases.
2. Rights of Foreign Firms to Petition the Competition Authority to Bring Action
- The NMa is charged generally with performing activities for the implementation and
enforcement of the Competition Act.  There is no formal petitioning procedure.  The NMa
will consider requests from any source - foreign or domestic - to take action against
anti-competitive conduct that affects a market in the Netherlands.  The General
Administrative Order (Algemene wet bestuursrecht, Awb) contains rules on the procedurebetween the request and the responding order.
- In principle, a decision on a request to take action on infringements of the prohibition
provisions must be taken within a set period.  The General Administrative Order says that the
decision must be taken within a reasonable period of time.  Within eight weeks the Director-
General either takes a decision or tells when the decision will be taken (Article 4:13 of theAwb).
- The Director-General of the NMa will not simply set aside such an application if it is
supported by arguments and satisfies the procedural requirements.  He will issue an order on
it.  That order must state the grounds on which the Director-General reaches his decision
(Article 4:16 of the Awb).
- The normal method of announcing orders is to send them to the party to whom they are
addressed (Article 3:41 of the Awb).  Sanctions orders shall be announced in the State
Gazette (Article 65 of the Competition Act).
3. Rights of a Foreign or Domestic Firm to Appeal a Decision by the Competition Authority
Concerning its Petition
If a party takes the view that its application was wrongfully dismissed or refused, it can
submit an objection to such an order.  If this is rejected, an appeal can be filed with the
Administrative Law Division.  If the appellant believes that it has suffered damages as a result
of the Director-General's order, a claim for compensation can be filed with the civil courts.WT/WGTCP/W/34
Page 48
4. Rights of a Foreign or Domestic Firm to Intervene in Cases Brought by the Competition
Authority
- The competition authority doesn't bring cases in a national court, but has a right to take
decisions based on the Competition Act.  Therefore, it gathers the necessary intelligence
concerning the relevant facts of the interests to be considered in the preparation of a decision.
Every firm has the right to petition the competition authority.
A special public preparation procedure applies for certain decisions with discretionary
powers, which may involve third party interests (the application for dispensation from the
prohibition of cartels or for a licence to realize a concentration).  The procedure involves the
publication of the material content of applications for dispensation and affording interested
parties an opportunity to make their views known.
- Everyone who has an interest has the right to demand to intervene in a case brought by
another firm in a national court.
5. Costs of Action for Foreign Firms, Representation and Official Language
- The costs of action are not significantly different for foreign firms.- Before the competition authority, no local lawyer is necessary.
- Before the court, a local lawyer is necessary.
- In principle, the Dutch language is used by the competition authority.  If the
competition authority receives a request in any other language, it can demand a
translation, but only if this is necessary to judge the request or to prepare the decision.
PORTUGAL
I. INTRODUCTION
New antitrust legislation was adopted in Port ugal in October 1993.  The new legislation -
Decree Law (DL) 371/93, of 29 October 1993, establishing the general regime on the "protection and
promotion of competition" (the "Competition Act") - entered into force on 1 January 1994 and
revoked the former antitrust statute (DL 422/83, of 3 December 1983), as well as the statute dealing
with merger control (DL 428/88, of 19 November 1988).
The new statute also revoked some ancillary legislation, such as Decree ("portaria") 585/84,
of 9 August 1984, on temporary exclusion of the prohibition of individual trade practices (minimum
selling prices), and Decree ("Portaria") 820/84, of 23 October 1984, on prior control of agreements
between undertakings, decisions of associations of undertakings, concerted practices and abuses of
dominant position.WT/WGTCP/W/34
Page 49
II. NEW LEGAL PROVISIONS IN COMPETITION LAW
Summary of New Legal Provisions in Co mpetition Law and Related Legislation
Legislative developments
The new statute is intended to bring within its scope all the relevant antitrust issues.
Therefore, it covers not only agreements, decisions of associations of undertakings, concerted
practices and abuses of dominant position, but also merger control.  Besides, DL 371/93 alsoaddresses some issues which were not dealt with by the previous legislation, such as the abuse of
economic dependence and state aids.
Contrary to DL 422/83, "individual trade practices " are no longer included in the Competition
Act, as it was considered that the issues raised by those practices, both by their nature and by the
market share of the undertakings generally involved, were not very detrimental for competition and
should be treated under a separate statute.  This matter is now governed by DL 370/93, of
29 October 1993.
The new Competition Act enlarges the field of operation of antitrust law.  Indeed, certain
activities and sectors - such as the production, transport and distribution of electricity, natural gas,
water, post and telecommunications, public administration - are no more excluded from the antitrust
regime.  However, two important exemptions still remain.  According to Article 41(2) of DL 371/93,
"in case of public services, this Act does not apply to undertakings legally awarded concessions by theState, within the scope and terms of the relevant concession contract".  Furthermore, credit institutions
as well as finance and insurance companies are not submitted to the Competition Act provisions on
merger control.
Fines were substantially increased.  Antitrust infringements are now subject to the imposition
of fines ranging from 100,000$ to 200,000,000$ (US$ 7,000 to US$ 1,400,000).  Violation of otherprovisions of the Competition Act - such as opposition to investigations, provision of false
declarations or information, non-compliance with decisions of the antitrust authorities, lack of
notification of merger operations - are subject to fines ranging from 50,000$ to 100,000,000$
(US$ 3,500 to US$ 700,000).  However when the defenders are individuals the limits mentioned
above are reduced by half.
Rules governing merger control were also improved and follow now very closely those
included in EEC Regulation 4064/89, of 21 December 1989.  Mergers and acquisitions must be
previously notified to the Directorate-General for Trade and Competiti on (DGCC).  The inquiry
procedures are presently carried out by DGCC, before the final decision is taken by the Minister of
Economy, alone or together with the Minister(s) responsible for the economic activities affected bythe concentration.
The new Competition Act also introduces some important changes on procedural issues.  One
of the most significant concerns judicial review.  After the entry into force of DL 371/93, appeals
against the decisions taken by the Competition CC have no suspensory effect, except for the
imposition of fines and the mandatory publication of the decision.
Substantive Coverage
1. Publications
1.1 Agreements, concerted practices and decisions by associations of undertakings
Articles 2 and 3 of DL 371/93 are very similar to Articles 85 and 86 of the EC Treaty.
Article 2 prohibits " agreements and concerted practices between undertakings and decisions byWT/WGTCP/W/34
Page 50
associations of undertakings, in whatever form, which have as their object or effect the prevention,
distortion or restriction of competition in the national market or a part thereof ".  Some of the
prohibited practices are listed thereafter.  Agreements or decisions prohibited under Article 2 are void,
unless they are considered justified by the CC under the provisions of Article 5 (economic balance,
see below).
1.2 Abuse of dominant position
Under Article 3 of DL 371/93, " any abuse by one or more undertakings of a dominant
position within the national market, or in a substantial part of it, which has as its object or effect the
prevention, distortion or restriction of competition shall be prohibited ".
Article 3 establishes the criteria under which the existence of a dominant position shall be
assessed.  According to Article 3(2), a dominant market position is constituted where an undertaking
(or two or more undertakings operating jointly in a market) is (are) not exposed to significant
competition or has (have) a predominant market share in relation to third parties.  Article 3(3) definessome market share presumptions (30 per cent or a combined share of 50 per cent - two or three
undertakings - or 65 per cent - four or five undertak ings), without prejudice to the weighing of other
factors affecting the undertakings and the market in each particular case.
Under Article 3(4), an abuse is deemed to have occurred where the behaviour of undertakings
concerned consists of any of those mentioned in Article 2(1) of DL 371/93 (refusal to deal,
discrimination, tying, abusive or predatory pricing, etc.).
1.3 Abuse of economic dependence
Although the CC has dealt with this concept in some past decisions, the prohibition of abuse
of economic dependence was only established in the new statute.  Under Article 4 of DL 371/93, a
supplier or buyer shall not abuse of a position of economic dependence of a given undertaking whenthis one has no equivalent alternative.  There are some cases of alleged abuse of economic
dependence being investigated at present by the DGCC, but no formal procedure was opened yet.  It
must be underlined that, although several cases of abuse were informally reported, no complaint was
filed before the DGCC until now.
2. Economic balance
Notwithstanding the negative effect on competition resulting from the restrictive practices
prohibited by DL 371/93, they may be considered as justified if they benefit from a "positive
economic balance", i.e. if they contribute to improving the production or the distribution of goods or
services or to promoting technical or economic de velopment and meet all three conditions laid down
in Article 5.
The wording of this article is very similar to Article 85(3) of the EC Treaty, and results from
the consideration that the rules of competition shall be interpreted not as a condition per se , but as an
instrument to promote workable competition in the market.  Contrary to EC competition law, there is
no need for a prior notification of an agreement in order to benefit from a particular exemption.
However, undertakings are free to notify their agreements to the CC under the procedure established
by the Decree 1097/93, of 29 October 1993.
3. Merger control
Until 1994, the rules applicable to mergers and acquisitions were established in a specific
statute, DL 428/88.  The inclusion of merger control in DL 371/93 was justified not only by theadvantage of having a single Competition Act, covering all relevant matters for competition, but alsoWT/WGTCP/W/34
Page 51
be the need of introducing some modifications as a result of the previous experience and of the
approval of EC Regulation 4064/89, of 21 December 1989.
Concentrations, whatever form they have, which lead to the creation or the strengthening of a
share higher than 30 per cent of the national market, or in a substantial part of it, or where the
participating undertakings' turnover in Portugal, in the preceding financial year, was more than
30 billion Escudos, after deduction of tax directly related to the turnover, are subject to priornotification to DGCC.  Until tacit or express authorization is given, any transaction establishing the
concentration has no legal effects.
According to Article 10(1), concentrations subject to prior notification which create or
reinforce a dominant position in the national relevant market, susceptible of restriction competition,
are prohibited, unless they are authorized either because the economic balance criteria established in
Article 5 are met or they significantly reinforce th e international competitiveness of the participating
undertakings.
The inquiry procedures are conducted by the DGCC within a period of 40 days as from the
date of notification.  After the investigation and hearing of the case, the DGCC shall deliver the file to
the Minister of Economy.  In case of a negative assessment of the effect on competition of the notified
merger, the Minister shall request an opinion from the CC.  This request must be done within 50 days
as from the date of notification and communicated to the parties concerned.  The CC shall deliver itsopinion within 30 days as from the date of the request.  Within 15 days after the reception of the
opinion of the CC, the Minister of Economy (jointly with the Minister in charge of the economic
sector concerned, except for the "positive" decisions) may decide either not to oppose the
concentration - eventually subject to the imposition of conditions and obligations appropriate for the
maintenance of effective competition - or to prohibit the concentration - and, if it has already been putinto effect, order appropriate measures to restore competition, such as the separation of undertakings
or of the combined assets.
4. State aid
Contrary to the previous legislation, DL 371/93 also addresses State aid.  The main reason for
the introduction of specific rules on State aid in the new statute seems to be, as for merger control, theadvantage of creating a single legal framework for competition matters.
However, ti has to be underlines that provisions of State aid laid down in DL 371/93 do not
establish a clear prohibition.  Indeed, Article 11 only establishes the principle according to which aid
to undertakings granted by the State or any other public body must not restrict or have a significant
effect upon competition in the market or part ther eof.  The Minister of Economy may also propose to
the Minister responsible for the economic activities affected by the aid the adoption of measures
which he considers necessary to maintain or re-establish competition.  Besides, not all aid shall be
considered as falling under the provisions of Article 11 of DL 371/93.  Two specific categories are
expressly considered not to be aid for the purposes of Article 11 (see below b.1.9).
5. Interim measures
Subject to the condition that the investigations indicate, with a certain degree of probability,
that the practices which are the subject of the procedure are seriously damaging to economic or socialdevelopment or to the interest of economic operato rs and/or consumers, the CC may, on a proposal by
the DGCC, order the immediate suspension or modification of the practices in question.
If the undertakings concerned are credit institutions or financial companies, insurance
companies or pension fund management companies,  the CC shall request, before the adoption ofWT/WGTCP/W/34
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interim measures, an opinion from the Bank of Portugal and/or the Stock Exchange Commission, or
from the Portuguese Insurance Institute, as the case may be.
6. Exclusions
- Restrictions on competition which derive from specific laws are exempt of the application of
the Competition Act (see Article 1(3) of DL 371/93).
- Compensation, in whatever form, provided by the State in payment for a public service and
benefits provided under the terms of incentive programmes or other specific schemes
approved by the Government or the Assembly of the Republic are not considered aid for the
purposes of the Competition Act [see DL 371/93, Article 11(3)].
- In the case of public services, the provisions of DL 371/93 are not applicable to undertakings
awarded concessions by specific law, within the scope and under the terms of the relevant
concession contract [see DL 371/93 Article 41(2)].
- DL 369/93, published on the same date as DL 371 /93, allows publishers to fix the price of
their own books (except school books), newspapers, magazines and other publications.
7. Partial exclusions
- Credit institutions, as well as financial and insurance companies are not submitted to the rules
governing merger control laid down in DL 371/93.
- Certain agreements and/or concerted practices between credit institutions and financial
companies - defined in DL 289/92, of 31 December 1992 - are not considered as restrictive of
competition.
8. Procedure
DL 371/93 contains specific procedural rules in its Chapter III (Section I for procedures in
respect of agreements, concerted practices, decisions by associations and abuses of economic power,and Section II for merger control).  However, some procedural matters are specifically regulated in
other articles [see Articles 5(2), 7 and 11(2)].
DL 433/82, of 27 October 1982 (as amended by DL 356/89, of 17 October 1989, and by
DL 244/95, of 14 September 1995) is subsidiarily applicable to the procedure in respect of restrictive
practices (namely to the appeals against the decisions adopted by the CC or the DGCC).
DL 442/91, of 15 November 1991 (the "Code of Administrative Procedure"), is also
applicable in respect of the relations between citizens and the public administration and is the
subsidiary legislation for merger control procedures.
III. ENFORCEMENT ACTIVITY (1996)
Antitrust: six new cases were initiated by DGCC
nine cases were decided by Competition Council.
Mergers: 27 mergers were notified to DGCC and 21 were authorized.WT/WGTCP/W/34
Page 53
IV. ENFORCEMENT STAFF
Currently, 29 experts enforce competition law in DGCC.
SPAIN
1. Spanish competition legislation
Spanish competition legislation is set out in Law 16/89 on the Defence of Competition,
Law 3/1991 of 10 January on Unfair Competitio n, Royal Decree 1882/86 implementing Articles 85
and 86 of the Treaty of the European Economic Community, Royal Decree 157/92 concerning
exemptions by categories, individual authorization and competition register, Royal Decree 1080/92 on
the procedure to be followed for economic concentrations, and Royal Decree Law 7/1996 on urgent
measures of a fiscal nature and to promote the liberalization of economic activity.
This legislation empowers the competition bodies to deal with the following matters:
restrictive competitive practices, unfair competition practices that affect competition and the public
interest, control of concentrations, control of the effects of public aid on competition, and theapplication of Articles 85.1 and 86 of the Treaty of the European Union.
Restrictive practices
Articles 1 and 6 of Law 16/1989 follow the proh ibition of agreements and abuse of dominant
position set out in Articles 85 and 86 of the Treaty establishing the European Community (ECT),
although of course without considering effects on intra-Community trade.
Firstly, Article 1 of Law 16/89 establishes the prohibition of any agreement, decision or
collective recommendation, or concerted or deliberately parallel practice, which has as its object, or
has or may have as its effect the prevention, restriction or distortion of competition in all or part of the
national market.  In particular, such practices refer to  the fixing of prices or other trading conditions,
limitation of production, distribution, technical development or investment, sharing of markets orsources of supply, application of dissimilar conditions to equivalent transactions thereby placing some
competitors at a competitive disadvantage compared with others, and making the conclusion of
contracts subject to the acceptance of additional obligations which have no connection with the
subject matter of the contracts.
These practices are null and void, save where they are covered by the exemptions provided
for in the Law.  Article 2 authorizes practices stemming from the application of a law or regulatory
provisions issued pursuant to a law.  Royal Decree Law 7/96 added to this Article 2 a second
paragraph stating that, on the contrary, the prohibition set out in Article 1 does apply to restrictions of
competition stemming from the exercise of other administrative powers or caused by the actions of
the authorities, public entities or public enterprises where they do not enjoy such legal protection.This amendment has clearly delimited the scope of the exemption and confirms the powers of the
competition bodies to prosecute any anti-competitive practice regardless of the public or private
nature of the operators involved.
Article 3 establishes that individual authorizations may be granted in the case of practices
covered by Article 1 provided they contribute to improving the production or distribution of goods or
to promoting technical or economic progress or are justified by the general economic situation and the
public interest, and also provided they meet certain conditions.  Article 4 specifies that the Tribunal de
Defensa de la Competencia (Competition Court) is empowered to grant these individualWT/WGTCP/W/34
Page 54
authorizations.  In addition, Article 5 empowers the Government to authorize, by means of regulations
granting exemptions, specific categories of agreemen ts or concerted practices mentioned in Article 3
provided they involve two enterprises and meet a num ber of requirements concerning their object and
content.
It should be stressed that the competition bodies need not prosecute restrictive agreements
which cannot significantly affect competition owing to their insignificance.
Secondly, Article 6 of the Law prohibits the abuse of a dominant position by one or more
enterprises in all or part of the national market.  Such abuse may consist, in particular, of the practices
mentioned in Article 1, and also the unjustified refusal to satisfy requests for the purchase of products
or provision of services.  This prohibition applies even where the dominant position has beenestablished by law.
Thirdly, the competition bodies also deal with the unfair competition practices set out in
Law 3/1991 which affect the public interest by significantly distorting free competition.
Concentrations
The Law on the Defence of Competition stipulates that the Minister of the Economy and
Finance may report to the Competition Court an y planned or actual concentration, merger or
acquisition of enterprises provided it affects or may affect the Spanish market, in particular through
the creation of strengthening of a dominant position, when it exceeds one of two thresholds of market
share or turnover in Spain (25 per cent of market share or aggregate turnover in Spain exceeding
20 billion ptas).
Apart from acting ex officio, the Competition Service receives information through voluntary
notifications of any planned or actual concentration, merger or acquisition, which may be carried out
up to three months following the operation and does not involve suspension of the operation.
The Minister of the Economy and Finance transmits to the Court the cases he considers may
hinder the maintenance of effective competition in the market.  The report of the Competition Court is
transmitted to the Minister for forwarding to the government, which may decide not to oppose the
concentration, subject it to specific conditions, or reject it.
Public aid
Article 19 of Law 16/89 establishes that the Comp etition Court, at the request of the Minister
of the Economy and Finance, may examine public aid to enterprises from the standpoint of its effects
on competitive conditions.  Upon receiving the Court's opinion, the Minister may propose to the
government that the aid be eliminated or modified, or any other measures to restore or maintain
competition.
Application of the Community competition rules
Royal Decree 1882/86 establishes that the Spanish competition bodies may apply in Spain the
Community legislation in this area, sharing th is function with the Commission, although without
being able to grant exceptions under Article 85.3 of the ECT.
2. Enforcement
The authorities responsible for applying Law 16/1989 are the Competition Service -
Directorate-General of Economic Policy and Protection of Competition of the Ministry of the
Economy and Finance - and the Competition Court.  The Competition Service is responsible forWT/WGTCP/W/34
Page 55
investigating and carrying out the interlocutory stages of the proceedings and for drawing up a report
for the Court, which is responsible for issuing a de cision on the matter, taking into account the report
prepared by the Service and its own investigation.
Application of the law is initiated by the Service, either because of its own suspicions or
following a public complaint by any person.  A period for submission of information or preliminary
investigation may be granted, which may not last more than 30 days, before a decision is taken onwhether to file the complaint or initiate a case with a view to sanctions.
The initiation of a case is notified to the parties concerned.  A summary of the affair may also
be published in the Official Journal and in a national and regional newspaper to open a 15-day period
for public submission of information.
When the facts have been investigated, practices that may involve a prima facie offence are
set out in a statement of facts.  This document is notified to the alleged offenders to enable them to
reply within 15 days and request any evidence they may wish.
Once the preparatory investigation has been completed, the file is transmitted to the Court
together with a report and a preliminary legal opinion.  The Court takes its decision on the
admissibility of the case and so notifies the parties, which may request an oral hearing and the
collection of whatever evidence they consider necessary.  When it considers that the investigation has
been concluded, the Court issues its decision on the matter.
The Court's decisions may establish that a prohibited practice exists, or that such practice has
not been proved, or that practices that fall under an exemption are authorized.  The decision is notified
to the parties and published in the Official Journal and in one or more national or regional
newspapers.
With regard to sanctions, the Court may order that the anti-competitive practice cease, the
removal of its effects, and the imposition of a fine.  Fines may not exceed 150 million pesetas or
10 per cent of turnover in the period preceding the decision, while coercive fines may amount to
150,000 pesetas per period of time, which may be per day.
Any act by the Service which makes it impossible to continue the proceedings or impairs the
right of defence may be appealed to the Court.  The Court's decisions may not be appealed to anyother administrative body, but may be appealed to the administrative litigation courts.  Once the
decision and possible judicial judgement of an appe al are final, the enterprise may begin proceedings
for damages in order to seek indemnification.
With regard to the rights of foreign enterprises compared with Spanish enterprises, the laws
make no distinction as to the nationality of the parties.  The anti-trust procedure ensures that alldecisions by the responsible authorities must be duly justified and the parties promptly informed of
any action affecting them;  they may present their pleadings at any time and have the right to receive a
reasoned reply to their requests, regardless of their nationality.
3. Summary of action in 1996
Competition staff
Competition Service: 36
Competition Court: 15WT/WGTCP/W/34
Page 56
Number of cases
Sub-Directorate for Restrictive Practices
Cases opened in 1996: 180
of which: complaints: 120
ex officio: 15
applications for individual authorization:746
Cases closed in 1996: 182
of which: filed: 79
cumulation of cases: 13
dismissed: 24
referred to the Court: 66
Sub-Directorate for Concentrations and Studies
Cases opened in 1996: 23Competition Court
Cases closed in 1996: 102
of which: prohibited practices: 19
individual authorizations: 40
appeals against acts by the Service: 43
Imposition of sanctions
Sanctions imposed in 1996: 12
of which: largest amount: 110,000,000 ptas
smallest amount: 750,000 ptas
total amount: 322,975,000 ptas
SWEDEN
Competition legislation in Sweden
The Swedish Competition Act entered into force on 1 July 1993.  It is based on the
prohibition principle and modelled on the EC competition rules, primarily Articles 85 and 86 of the
Treaty of Rome.  It also contains provisions on mergers and acquisitions as well as on enforcementand sanctions.
The purpose of the Swedish Competition Act is to eliminate and counteract obstacles to
effective competition on the Swedish market.  When, therefore, EC case-law is used as guidance for
assessing an individual case under the Act the size and other characteristics of the Swedish market
                                                     
7 It may happen that an application for authorization is concurrent with a complaint.WT/WGTCP/W/34
Page 57
must be carefully considered.  The Swedish Competition Authority does not apply Article 85(1) and
Article 86 of the Treaty of Rome.
The Swedish Competition Act applies to all sectors of the economy and it is applicable to all
kinds of undertakings, privately and publicly owned.  The term "undertaking" shall have the same
interpretation as under EC law.  Thus, it applies to every form of activity of an economic orcommercial nature.  Transactions between firms belonging to the same economic unit, e.g. between a
parent company and its subsidiaries, generally so not fall under the scope of the Competition Act.
The Swedish competition legislation applies generally and makes no difference between a
foreign and a domestic firm.  As a consequence there are no special rules in Swedish law concerning
the rights of foreign firms to make claims in competition matters.
The Act does not apply to activities involving th e exercise of authority.  Equally, it does not
apply to agreements between employers and employees relating to wages and other conditions of
employment.
Two main prohibitions are laid down in the Act:  on anti-competitive agreements and
concerted practices restricting competition and on the abuse of a dominant position.  Agreements
between undertakings shall be prohibited if they have as their object or effect the prevention,
restriction or distortion of competition on the Swedish market to an appreciable extent.  Cooperation
between small- and medium-sized undertakings where the products of the agreement cover a small
part of the relevant market, normally falls outside the scope of the prohibition.  As in the
corresponding provision in Article 85(1) of the Treaty of Rome, the Swedish rule contains examples
of practices which are regarded merely as illustrative of restrictions of competition that are
particularly severe, such as cooperation on prices and market sharing.
Agreements or provisions included in agreements that fall under the prohibition shall be void.The prohibition does not apply to certain forms of cooperation agreements within a primary
association in the agricultural sector.
If certain criteria are satisfied, the Swedish Competition Authority may grant an individual
exemption from the prohibition for an agreement or concerted practice which falls within the scope of
the prohibition on anti-competitive cooperation.  The criteria for the applied competition test are
modelled on those contained in Article 85(3) of the Treaty of Rome.  The Government has further
issues block exemptions for certain categories of agreements which fulfil the stipulated conditions for
individual exemptions.
The Act also prohibits the abuse of a dominant position on the Swedish market.   The concept
of a dominant position is, similar to the corresponding concept under EC law, defined as a strong
economic position on a market enjoyed by an undertaking which enables it to prevent effective
competition by acting independently of its competitors and customers and, ultimately, of consumers.
Merger control is compulsory above certain turnover thresholds.  Mergers and acquisitions of
firms established in Sweden shall be notified to the Swedish Competition Authority if the turnover of
the participating undertakings exceeds Skr 4 billion and the turnover of the acquired undertaking
exceeds Skr 100 million.  The notification to be submitted is similar to the form CO used under the
EC Merger Regulation (4064/89).
Firms may notify the Competition Authority of agreements with a view to obtaining an
exemption or a negative clearance or they may lodge complaints.  The Authority takes decisions onWT/WGTCP/W/34
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negative clearance, exemptions, and obligations to terminate infringements of the Competition Act.
Such decisions may be appealed in two legal instances.  The judgements made by the court of first
instance in cases concerning competition legislation may be appealed to the Market Court, which is
the court of final appeal in such cases.  No appeal can be made to the swedish Government in cases
under the Competition Act.
Enforcement procedures and sanctions are other elements of the legislation for which the EC
rules have served as a model in the Swedish Comp etition Act.  However, even though the Swedish
competition legislation is closely modelled after EC law, the application on a national level of the
competition rules gives rise to differences that result from the special features of the Swedish
administrative and procedural legal system of which the Swedish Competition Act forms part.
If a firm infringes the prohibitions in the Competition Act, it may be subject to sanctions
(fines and obligations with or without fines) as well as remedies in civil law (damages).
A firm that intentionally or negligently infringe s the prohibitions may be liable to a fine.  The
court of first instance determines the fine at the request of the Competition Authority.  The Authority
may further require a firm to terminate an infringement of any of the prohibitions.  Obligations may
be combined with a penalty of a fine.
The Competition Authority has taken these measures in a number of cases concerning abuse
of a dominant position, particularly when the firms involved have a very strong position on the marketin relation to their competitors.  Many cases are settled after the parties having made commitments to
the Competition Authority.
The firm itself is responsible for taking legal action through the courts if it wishes to
challenge the validity of any sanctions imposed or claim for damages.
The Swedish Competition Authority has a total of 121 employees, of which about 100 are
lawyers and economists primarily dealing with enforcement of competition law.  Approximately
80 per cent of the resources are dedicated to competition law enforcement.
The total number of cases under the Competition Act - mergers, agreements and complaints  -
pending at the end of 1996 amounted to 526.  In 1996, a total of 794 new cases were registered under
the Competition Act and a total of 929 decisions were taken.  Around one third of the cases referred tomergers.
An important task assigned to the Competition Authority is its consultative role on existing
and proposed public regulations.  Approximately 150 formal opinions were submitted to
governmental and public authorities during 1996.
Sweden is a member of the European Union and a signatory to the Agreement of the
European Economic Area.  Sweden has not entered any formal bilateral agreements of cooperation
with third countries in the competition field.  Ho wever, the Swedish Competition Authority attaches
great importance to cooperation with competition authorities in other countries and within various
international fora.WT/WGTCP/W/34
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UNITED KINGDOM
I. DESCRIPTION OF NATIONAL LAW
General
Restrictive agreements and dominant positions
The United Kingdom proposes to introduce a prohibition of anti-competitive practices and
abuse of market power similar to that in Articles 85 and 86 of the EC Treaty.  The main instrumentsof the United Kingdom's current legislation are briefly described below;  the new legislation is
intended to replace the Restrictive Trade Practices Act 1976 (RTPA) and the Resale Prices
Act 1976 (RSA).
The RTPA provides that agreements containing certain specified restrictions must be
furnished to the Director General of Fair Tradin g (DGFT) for registration.  The DGFT must refer such
agreements to the Restrictive Practices Court unless the Secretary of State decides that the restrictions
in the agreement are not significant.  If the Court finds the agreement to be contrary to the publicinterest, the restrictions it contains are void, and enforcement measures may be taken against the
parties.  The RSA prohibits individual and collective resale price maintenance.
The Fair Trading Act 1973 (FTA) applies to monopolists, whether scale monopolists, who
have 25 per cent or more of the market on their own or with other companies in their group, or
complex monopolists, who share 25 per cent or more of the market and who all behave in a way (notnecessarily the same way) that restricts competition.  Where complex monopolies result from an
agreement or arrangement, the FTA is relevant as a law which relates to certain restrictive
agreements.
Under the FTA, monopoly situations may be referred by the DGFT or the Secretary of State
to the Monopolies and Mergers Commission (MMC) for investigation.  If the MMC's report isadverse, the Secretary of State may make orders against the firms involved or authorize the DGFT to
negotiate a settlement.  Before making a referen ce it is open to the DGFT to consider whether to
propose certain undertakings for the Secretary of State to accept as an alternative to a monopoly
reference.  This also applies in the case of mergers.
Merger control
There is no obligation on businesses to notify mergers in which they are involved but it is the
duty of the DGFT to keep himself informed of United Kingdom mergers and to advise the Secretary
of State about them.  Under the FTA, the Secretary of State may refer a merger to the MMC for
investigation.  If the report of the MMC is adverse, the Secretary of State may make various orders or
can accept undertakings.
Coverage and exceptions
Although there are a small number of exceptions to the RTPA for restrictive agreements there
are no significant exceptions to United Kingdom competition law taken as a whole.  The RTPA does
not apply to the "Crown" (which includes central government and certain public authorities) and the
FTA does not bind the Crown but it is government  policy that Crown immunity should not lead to
distortions of competition.
The only exclusions from the merger provisions of United Kingdom legislation flow from the
operation of Community law and relate to mergers meeting the thresholds of the EC MergerWT/WGTCP/W/34
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Regulation 4064/89 and mergers covered by the EC Steel and Coal Community Treaty.  Accordingly,
for mergers there would not appear to be any exceptions when taken with EC law.  A United
Kingdom merger only qualifies for reference if the worldwide assets are more than £70 million or a
25 per cent market share is created or increased in the United Kingdom or a substantial part of it.
Main differences with Community law
The proposed new legislation will be much closer to EC law than current United Kingdom
legislation.  United Kingdom law at present has an investigatory approach (i.e. actions may be
proscribed only following an investigation) ex cept for resale price maintenance under the RSA
whereas Community law adopts a prohibition approach (whereby actions are proscribed before they
are undertaken).  United Kingdom competition law is primarily concerned with the maintenance of
effective competition and the principle of fair trading to protect the consumer (notwithstanding the
public interest test which allows other factors to be taken into account).  One of the main objectives of
Community competition law is furthering Community integration, enabling free trade between allmember States within the single market.
There are various differences in the jurisdictional tests (e.g. thresholds) and in
penalties/remedies (e.g. Community law provides for fines whereas United Kingdom law generally
does not).  Both systems are largely administrative but the Community system provides for appeals in
the courts against decisions and for private actions.  United Kingdom law generally does not providefor appeals against decisions (although decisions can be judicially reviewed).  Decision's of the
Restrictive Practices Court can, however, be appealed on the basis of fact in the normal way under
United Kingdom law.  There is only limited provision for private actions.
II. IMPLEMENTATION
Enforcement staff
The United Kingdom has around 250 staff engaged in enforcement and policy work on
competition issues.
Enforcement activity
Restrictive agreements
In 1996, 699 agreements were added to the register;  44 investigations into suspected cartel
activity were started and six court cases were concluded.
Monopolies and anti-competitive practices
In 1996, of OFT recorded 1,396 complaints about alleged anti-competitive practices,
monopoly abuses, and attempts to impose resale price maintenance.  In most cases, the complaints
proved to be unfounded, or not to come within the scope of the legislation;  in others the companies ororganizations about which complaints were made were able to satisfy the OFT that there was no need
for further investigation or action.  During the year, the DGFT referred three monopoly situations to
the MMC and reports were published on two in vestigations by the MMC following monopoly
references.
Mergers
In 1996, the OFT considered a total of 533 merger cases;  the Secretary of State made
11 merger references to the MMC.WT/WGTCP/W/34
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III. SANCTIONS FACED BY FIRMS
There is no provisions for fines or criminal sanctions under the current United Kingdom
system but as explained above the United King dom took action against a significant number of
mergers, monopoly positions and restrictive agreements in 1996.
IV. RIGHTS OF FIRMS
Foreign firms have the same rights to pursue remedies as domestic firms.  References and
MMC reports (subject to excisions on the grounds of public interest or serious and prejudicial harm to
the interests of particular persons) are published.  MMC reports include an account of the reasons for
its conclusions and a survey of the general position with respect to the subject-matter of the reference
and of the developments which have led to the position it has found to exist.  Generally speaking,
decisions made in the light of MMC reports do not have to be reasoned.
V. DESCRIPTION OF AGREEMENTS WITH THIRD COUNTRIES
In 1996, the United Kingdom authorities OFT issued 18 requests for information under the
OECD Recommendation (of which 17 were part of a single exercise) and received one request for
information from another authority.  No notifications of action taken under competition law were
made but 25 notifications of action were received.  This understates the amount of traffic which goes
on.  Most such requests are informal and, in some cases the Recommendation is not cited.
__________