Originally from:
International Antitrust Law & Policy: Fordham Corporate Law 2003 - Hardcover
International Antitrust Law & Policy: Fordham Corporate Law 2003 - PDF
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Chapter 4
THE FIGHT AGAINST SECRET HORIZONTAL
AGREEMENT IN THE EC COMPETITION
POLICY
Olivier Guersent†
All competition policies around the world are based on the deeply
rooted idea that free markets subject to effective competition provide the
best possible guarantee for offering consumers the best choice of quality
products and services at reasonable prices. Amongst the range of
anticompetitive practices that damage this process, cartels are widely
considered as the most serious violation of competition rules and fighting
cartels is high on the agenda of all competition authorities around the
world.
These considerations certainly apply to the European Union. First,
Article 81(1) of the Rome treaty provides for a clear ban on secret cartels
which, unlike other restrictive agreements, cannot be exempted under
Article 81(3). Secondly, the European Commission has been long
committed to fighting cartels. Since the first anti-cartel decisions were
adopted in 1969,1 the Commission has issued almost 80 decisions against
hard core (price fixing, market sharing) cartels.
However, despite this longstanding commitment and a rather good
record in terms of enforcement,2 the European Commission decided, in the
late 1990s, to put a major emphasis on its fight against cartels as it was
then perceived as not being effective enough. The first part of this paper
presents briefly the various measures taken by the Commission so as to
improve the effectiveness of the EC Commission’s fight against cartels.
The first fruits were harvested in the summer of 2001. Since July 2001
the European Commission has adopted 20 new Decisions (ten in 2001; nine
in 2002 and one so far in 2003) under Article 81(1) of the Treaty and (in
most cases) Article 53(1) of the EEA Agreement. These decisions imposed
About the Editor:
Barry Hawk is Director of the Fordham Competition (formerly Corporate) Law Institute and Partner with Skadden Arps (New York and Brussels). He is former Vice Chair of the ABA Antitrust Section and former Chair of the New York State Bar Association Antitrust Section, as well as Professor at Fordham Law School and Visiting Professor at Michigan Law School, Monash University Law School, New York University Law School and the University of Paris.