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  1. Not Cartels-Permitted Commercial Transactions

Not Cartels-Permitted Commercial Transactions

Unlike in the cartel case (where the lawyer's role is invariably an effort in damage limitation after the event), in "not cartels" co-operation between competitors the lawyer will often be involved in setting up the arrangement. That will not infrequently call for significant investment by the participants. The key consequences of illegality in relation to "not cartel" co-operation are not so much that of fining and prison, but rather (i) that of the civil law unenforceability of the arrangements (or key parts of them) as between the parties (and not uncommonly the assumed enforceability of those parts will have been a key element in the investment decision), (ii) that of possible third party damages claims (by competitors, suppliers, customers, consumers) and (iii) in consequence, possible negligence claims against the lawyer.

The module will focus upon the following areas:

  • The European Commission's view of the general principles on co-operation between competitors, as set out in the 2001 Guidelines on Horizontal Co-operation and the 2004 Notice on Article 81(3) EC (perhaps with a look at how the general principles are seen in the USA);
  • Co-operation between competitors in research and development
  • Joint manufacturing between competitors (e.g. two vehicle manufacturers co-operating to produce a common range of vehicle engines);
  • Joint selling by competitors (common in agriculture, and one possible remedy against supermarket buyer power; and including joint tendering (where does legitimate consortium tendering stop and illegal bid-rigging start?));
  • Joint purchasing by competitors (again, for example, common in mainland Europe in agriculture);
  • Agreements between competitors on common technical standards;
  • Agreements between competitors on measures for environmental protection (which has become something of an area on its own);
  • Crisis/restructuring cartels (which may become more relevant again in recession);
  • The application of competition law to trade associations (which tend to be made up of competitors) and what they may and may not lawfully do, and the often related subject of information exchange between competitors ("benchmarking" etc.) ;
  • Competition law as it applies to the liberal professions (where specific principles have been developed by the ECJ and investigations have been made by DG COMP and by a number of NCAs);
  • Competition law as it applies in the sports sectors (which is characterised more by a series of rather murky political compromises than by hard law);
  • Some treatment of some of the sector-specific regimes for the transport sectors (some of which are very different from "mainstream" sectors);