Case Law. The Contracting Parties, in order to achieve the objective of arriv- ing at as uniform an application and interpretation as possible of the provisions of this Agreement, shall keep under constant review the development of the case law of the Court of Justice of the European Communities, as well as the development of the case law of the competent courts of Iceland and Norway relating to these provisions and to those of similar surrender instruments. To this end a mechanism shall be set up to ensure regular mutual transmission of such case law.
Case Law. The Australian public enforcement procedure is as follows. The Australian Competition & Consumer Commission (ACCC) may bring cases to the trial judge in case of an alleged violation of the CCA. Appeals are subsequently open to the Full Federal Court (FFC) and, finally, to the High Court. Several Australian cases on misuse of market power, especially those on refusals to deal, make clear that a defendant may invoke a justification plea.1014 The scope of potential justifications appears to be relatively broad. As Xxxxxxxx has noted,1015 justifications for a refusal to deal have been accepted for several reasons, including the protection of legitimate trade and business interests,1016 to prevent the unauthorised use of the defendant’s material and to maintain the integrity of its licensing system,1017 as a response to inappropriate product labelling and to rationalize the distribution chain,1018 and to secure payment of a debt.1019 The Queensland Wire case showed some of the contours of business justifications.1020 The High Court examined Queensland Wire’s claim that BHP had misused its market power by effectively refusing to supply1021 Y-‐Bar, a steel product. The Court made clear that, once it is established that a firm has a substantial degree of market power, the issue is whether it has taken advantage of that power for one of the proscribed purposes,1022 requiring a causal link between the market power and the conduct under
Case Law. The enforcement of Canadian competition law takes place by the Competition Bureau1058 or a private party bringing a case before the Competition Tribunal. Subsequently an appeal may be lodged before the Federal Court of Appeal (FCA). If allowed, a further appeal may be brought before the Canadian Supreme Court. Before discussing the landmark Canada Pipe judgment by the FCA, it is apt to examine three rulings by the Competition Tribunal to provide sufficient context on the issue of justifications. These judgments are Nielsen, Tele-‐Direct and NutraSweet. The Nielsen case focused on the use of exclusive contracts to deny (potential) competitors access to scanner data used for market tracking services.1059 The Tribunal examined whether the exclusive agreements were based on a valid ‘business justification’ rather than an anti-‐competitive purpose.1060 The Tribunal held that it may consider ‘any credible efficiency or pro-‐competitive business justification’. I believe that this terminology aptly reflects the wide range of available justification pleas. The Tribunal also noted that the justification plea must be weighed ‘in light of any anti-‐competitive effects’ with the aim ‘to establish the overriding purpose’ of the challenged act.1061 I agree that such a balancing test is indeed instructive by accommodating all the different grounds and implications that can be attributed to the conduct under review.1062 1057 See Xxxxxxxxxx et al., supra note 1055, at 528: ‘efficiency considerations are crucial to deciding whether an act has the requisite anti-‐competitive purposes to be classified as an “anti-‐competitive act” pursuant to section 79’. 1058 Formally speaking, Competition Tribunal cases were brought by the Director of Investigation and Research or, more recently, the Commissioner of Competition. 1059 Canada (Director of Investigation and Research) v D&B Companies of Canada (‘Nielsen’), [1995] CT-‐1994-‐001. 1060 Ibid., at 67. 1061 Ibid., at 69. Confirmed by Tele-‐Direct (infra note 1063), at 259. 1062 As long as ‘purpose’ is not simply equated with subjective intent, which does not seem to be the case. The Tele-‐Direct ruling largely confirmed these principles.1063 The Competition Bureau argued that Tele-‐ Direct (a company active in the telephone directory market) had behaved anti-‐competitively, in particular by tying advertising space to sales services and refusing to deal with advertising consultants. The Tribunal used a weighing exercise, h...
Case Law. The Singaporean public enforcement procedure in Singapore is similar to that of the UK. The CCS can adopt an infringement decision if it finds that a company has acted contrary to the SCA. Such a decision can be appealed to the Competition Appeal Board (CAB).1129 A further appeal is open to the High Court,1130 and finally to the Court of Appeal – Singapore’s highest court. The 2010 SISTIC decision was the first case in which the CCS found an abuse.1131 The decision held that SISTIC, the dominant ticketing company in Singapore, contravened Section 47 SCA by foreclosing competition in the ticketing services market through a web of exclusive agreements.1132 1124 Ibid., at 11.4. 1125 Ibid., at 11.6. 1126 Ibid., at 11.6. 1127 Ibid., at 11.12. 1128 Ibid., at 11.16. 1129 Sections 71 and 72 SCA. 1130 Section 74 SCA. 1131 CCS decision of June 2010, SISTIC, available at xxxx://xxx.xxx.xxx.xx/content/dam/ccs/PDFs/Public_register_and_consultation/Public_register/Abuse_of_Domi xxxxx/SISTIC%20Infringement%20Decision%20(Non-‐confidential%20version).pdf. Referring to its own guidelines, the CCS devotes an entire chapter on the examination of objective justification.1133 The CCS examined whether the following conditions applied: 1134
Case Law. In terms of procedure, a plaintiff may bring a federal antitrust case before a District Court. Such a plaintiff is usually a private party, but can also be one of the enforcement agencies of US federal antitrust law; namely the Federal Trade Commission (‘FTC’) or the Antitrust Division of the Department of Justice (‘DoJ’). A subsequent appeal is open to a Circuit Court. If granted certiorari, a further appeal is open to the US Supreme Court. The seminal US Supreme Court judgment in Grinnell has made clear that a claim based on Section 2 of the Xxxxxxx Act requires evidence of ‘the willful acquisition or maintenance of [monopoly] power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.’1175 Such an exercise of monopoly power involves ‘specific intent’1176 to behave anti-‐
Case Law. Certainly, the relevant leading cases of the EU courts and prominent decisions by the Commission are indispensable to the discussion and hence annotated throughout the dissertation to elaborate on numerous specific issues. FEDETAB7 is quoted to certify that the IG Clubs, being non-profit-making, cannot escape Articles 101 and 102 TFEU. Belasco8 is cited to make an allusion, which was sidestepped by the 1999 Commission, that annual recommendations by the IG, even non-binding, should be treated as “agreements” under Article 101 TFEU. Delimitis v. Henninger9 is referenced to clarify the narrow approach to block exemption set down by the European Court of Justice (ECJ). A reference to Langnese-Iglo GmbH & Co KG v. Commission10 is made so as to criticise the leapfrog to Article 101(3) over Article 101(1) by the 1985 Commission Decision in the legal reasoning. Compagnie Maritime Belge v. Commission 11 is referred to justify simultaneous application of Articles 101 and 102 TFEU to the Pooling Agreement and the IGA. A group of cases including Xxxxxx Xxxxxx00, Xxxxx00xxx Oscar Bronner14 illuminate the approaches of Article 102 TFEU prevailing before the 2008 Guidance to the Pooling Agreement and the IGA, inter alia, “objective justification” and “sliding scale test” to “special responsibility”. GlaxoSmithKline 15 in contrast to CECED 16 shows the ambivalence of environmental consideration in the implementation of the EU competition 7 Joined Cases 209/215 to 218/78 [1980] ECR 3125, 3278 8 Case 246/86 [1989] ECR 2117 9 Case C-234/89 [1991] ECR I-935 10 Case T-7/93 [1995] ECR II-1533 11 Case C-395/96 P [2000] ECR I-1365 12 Case 27/76 [1978] ECR 207 13 Case C-333/94P [1996] ECR 5951 14 Case C-7/97 [1998] ECR I-7817 15 Case T-168/01 [2006] ECR II-2969 16 [2000] OJ L 187/47 law. The lasted ECJ‟s ruling of Alrosa 17 reaffirms the Commission‟s “margin of appreciation” established by the early joined cases of Consten & Grundig18 and provides the IG with some enlightenment on the commitment procedure. A comprehensive list of case law is incorporated into the section of references.
Case Law. 10. Counsel for the claimant advanced several authorities for consideration in arriving at an appropriate award for pain and suffering and loss of amenities and recommended as reasonable compensation in the instant case the sum of $230,000.00: Xxxxxxx Ansola v Xxxxxxxxx Xxxxx, Xxxxxx Xxxxxxxxxx and the Great Northern Insurance Co Ltd2 – where a 46 year old plaintiff who was a passenger in a vehicle sustained a severe comminuted compound fracture of the right lower tibia and fibula, a right talar dislocation and a right shoulder dislocation. There was a diminished range of motion of his right ankle and he complained of severe pain in the right ankle and pain in the right tibia and fibula. He was unable to stand for long periods and had to use a stick to move around because of his injuries. Operation of the right ankle was advised as a requirement to correct these problems and relieve pain. Permanent partial disability was assessed at 30% which could be reduced by 10% if surgery is performed. He was awarded general damages for pain and suffering and loss of amenities of $150,000.00 and for future surgery $60,000.00 which was unchanged on appeal. Caribbean Molasses Company Trinidad Ltd v Ganace3 – where a plaintiff/taxi driver suffered a compound comminuted fracture of the right tibia and fibula and a fracture of the right femur. A pin was inserted in the tibia and a rod in the bones and he developed an infection of the wound, which subsequently subsided. His knee movement was restricted from 1800 to 1600 and movement was severely limited. His ankle joint was stiff and he could not drive and had to walk with crutches. The Court of Appeal increased the award for general damages from $40,000.00 to $126,000.00 of which $96,000.00 represented loss of prospective earnings and $30,000.00 damages for pain and suffering and loss of amenities. This figure was adjusted in December, 2010 to $195,959.00. Of note is that this case is of some vintage so cautious reliance was placed on it in conducting the comparative assessment.
Case Law. The determination of whether a transaction should be treated, for federal income tax purposes, as a sale or as a lease is governed by the intention of the parties and the legal effects and economics of their relationship. See, e.g., Oesterreich v. Commissioner, 226 F.2d 798, 55-2 U.S. Tax Cas. (CCH) Paragraph 9733 (9th Cir. 1955); see also, M&W Gear Co. v. Commissioner, 446 F.2d 841, 71-2 U.S. Tax Cas. (CCH) Paragraph 9555 (7th Cir. 1971); Haggxxx x. 8 KAYE, XXHOXXX, XXERXXX, XXYS & XANDLER SC International Services, Inc. -5- September 20, 1995 Commissioner, 241 F.2d 288, 57-1 U.S. Tax Cas. (CCH) Paragraph 9230 (9th Cir. 1956); Lestxx x. Xxxmissioner, 32 T.C. 711 (1959); Bentxx x. Xxxmissioner, 197 F.2d 745, 52-1 U.S. Tax Cas. (CCH) Paragraph 9367 (5th Cir. 1952); Rev. Rul. 55-540, 1955-2 C.B. 39. In analyzing that relationship, the courts have considered a number of objective factors, focussing on the relationship between the economic terms of the obligations of the parties and the fair market values of the rights conveyed. Frito-Lay, Inc. v. United States, 209 F. Supp. 886, 62-2 U.S. Tax Cas. (CCH) Paragraph 9809 at p. 86,256 (N.D. Ga. 1962). Factors indicating an intent to enter into a sale and purchase transaction include the following:
Case Law. Xxxxxx v. Canada (Attorney General) [2002] 2 SCR 764 Xxxxxx v. Canada (Attorney General) [2004] SCC 33
Case Law. Many commentators continue to subscribe to the understanding of the law on the object criterion described here as the orthodox approach.32 Chapter 2 subjects the case law to a detailed critical legal analysis in order to determine more precisely the law on the object criterion. For the purposes of this chapter, however, this section provides a brief description of the case law that supports the orthodox approach in order to illustrate the European Courts’ contribution to the development of the orthodox approach.33 The clearest embodiment of the orthodox approach is found in European Night Services (ENS).34 The influence of the GC’s judgment in ENS on the legal interpretation of the object concept under Article 101(1) TFEU is profound and is consistently cited as authority for the proposition that the object concept operates 27 (Xxxxxxx, 2009), p5.
