Generación del diagrama PV

The EC Member States each have their own domestic competition laws” . For some thirty years, these laws were scarcely affected

See 2.3.3. below.

■® The competition laws of the fifteen Member States are: Austria: EEA Competition Act 1993, Kartellgesetz 1988,

Kartellgesetz 1993 - further amendments expected. Belgium: Loi du 5 août 1991 sur la protection de la

concurrence économique. Articles 2 and 3 are similar to Articles 85 and 86.

Denmark: Konkurrenceloven (Competition A c t ) , Statute 370 of 7.6.89, Consolidated version: Order no 114 of 3.3.1993 - amendments expected.

Finland: Law on Restrictions of Competition No 480/92 of 27 May 1992 and the Act on the Competition Council no 418/92.

France: Ordonnance n/86-1243 du 1.12.86 modifiée relative a la liberté des prix et de la concurrence, Amended by Act of 1 July 1996.

Germany: Gesetz gegen Wettbewerbsbeschrankungen (GWB) - in the process of being amended.

Greece: Nomos (Act) on the Control of Monopolies and Oligopolies and the Protection of Free Competition 703/1977, supplemented by Acts No 1934/91, 2000/91, and 2296/95.

Ireland: Competition Act 1991, Competition Amendment Act 1996.

Italy: Legge no 287 della concurrenza of 14.10.90.

Luxembourg: Act of 17 June 1970. Modified by Act of 8 December 1981. Article 1 of the Act is virtually identical to Articles 85 and 86.

by Community law, "save to the extent that national law takes into account the ease of trade between Member States in assessing conditions of supply and demand"®®.

This situation is changing rapidly. During the last few years, the competition rules of most Member States have undergone or are undergoing major changes. These changes are aimed at more similarity with the regime set out in Article 85 and 86 (and the Merger Regulation).

The Member States that recently joined the EC (Sweden, Denmark and Austria but not Finland) have introduced or are

introducing competition laws which directly reflect Articles 85 and 8 6.

At this moment, the laws of Belgium, France, Greece, Ireland, Italy, Luxembourg, Portugal, Spain, Sweden and the Netherlands are similar to Articles 85 and 86. It will be illustrated at 4.2.1. below, that the Italian Statute even requires interpretation according to Community law (and so do the laws of Finland and Sweden) and at 2.3.2. and 2.3.3.1. below that

Netherlands: Mededingingswet (Competition Act) of 1 January 1998, Staatsblad 1997 no. 242, replacing the Wet Economische Mededinging 1956 (latest version, Staatsblad 1994, 801) . The new Act is closely built on Articles 85 and 86.

Portugal: Decreto-lei 371/93 of 29.10.1993 estabelece o regime geral da defesa e promoçao da concurrência.

Spain: Ley 16/1989 de Defensa de la Competencia (The Competition Protection Act) of 17.7.89.

Sweden: Konkurrensanlagen 1993:20 of 14.1.93. Close resemblance to Articles 85 and 86.

UK: Fair Trading Act 1973, Restrictive Trade Practices Act 1976, the Resale Price Act 1976 and the Competition Act 1980 - reform in line with Articles 85 and 86 expected before the end of

1998.

See for a detailed description of the substantive provisions of the domestic competition laws of most Member States, The Application of Articles 85 and 86 of the EC Treatv by National Courts in the Member States, compiled by Braakman, Publication of the Commission, DG IV, July 1997. See for details on changes being made in domestic competition laws, the Annual Reports on Competition policy of the Commission.

®® Korah, EC Competition Law and Practice, sixth ed. 1997, p 24 .

Italian competition law does not apply to cases within the scope of Articles 85 and 86.

The competition rules of Austria, Denmark, Finland, Germany, and the UK are, at the moment, still substantially different®® but all of them, except Finland, are currently considering reforms to bring them more in line with Community law®^. The latter two, being old members of the EC, are quite familiar with the direct application of Articles 85 and 86 next to the domestic rules.

The converging trend in the domestic laws of the Member States certainly facilitates compliance by firms with both EC competition law and the domestic competition rules of all Member States in which they pursue business. But despite the growing similarity of the domestic rules, their actual application to restrictive agreements nevertheless continues to reflect the purposes of the Member State in question and differs from the Commission's application of the EC rules®^.

In France and Italy, for example, domestic rules take a favourable view of vertical distribution systems and exclusivity in sales or distribution contracts does not in itself restrict competition®^. The different cultural, social and political

®° In these countries, a violation of the rules on restrictions of competition such as under Article 85 is based on some type of abuse. In the UK, for example, restraints are contrary to the public interest whilst in Denmark a dominant influence may be exerted. See the Commission's Green Paper on vertical restraints in EC Competition policy of 22.01.97, [1997] 4 C.M.L.R. 519.

®^ There is a draft Bill circulating widely in the UK for comment, likely to be enacted in 1998. It is similar to Articles 85 and 86 but the old rules on Mergers will continue.

®^ The Commission's Green Paper on vertical restraints, at p 61, see footnote 90 supra.

®® Interesting is that the rules of Italy and France and also of Germany and the UK require a "rule of reason" (see 7.2.1.2. below) type of economic analysis in the first instance to determine whether a violation actually exists rather than in determining eligibility for exemption. In doing this, they rely heavily on economic analysis, especially the economic impact of the agreement in the relevant market. See 6.3.2.1. and 8.1. below.

structures in the different Member States have resulted in national approaches to competition that vary considerably and it is expected that this diversity will remain despite the growing convergence of the rules®^. Kerse noted:

"Whilst national laws may be designed to deal with the same sort of circumstances (i.e. restrictive practices, cartels, dominant positions) as Community law, their purpose will, generally, be specific to the Member State in question and may not however necessarily reflect the same interests and objectives as the Community’s®®"