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
1. The conduct was in defence of a legitimate commercial interest,
2. The firm has not taken more restrictive measures than were necessary,
3. The restriction resulted in certain benefits;
4. The restrictions are proportionate to the claimed benefits. On the facts, the CCS rejected SISTIC’s plea that exclusivity was necessary to maintain investments, holding that it is competition, rather than immunity from competition, that fosters investment and innovation.1135 In addition, the CCS held that SISTIC failed the necessity test,1136 as it had not demonstrated that its investments were (i) specific and (ii) directly attributable to the exclusivity agreements.1137 The approach by the CCS makes sense, as there is no reason to condone behaviour because of benefits that would have arisen even without that conduct. The CCS also noted that the conduct under review does not meet the proportionality test, as third-‐party event promoters (a group which it considers one of the ‘stakeholders’) do not benefit from the discounts.1138 It is unclear why the CCS has relied on this observation. As the SCA statute is clearly geared towards encouraging efficient market conduct,1139 it is unclear why every stakeholder should necessarily benefit from the conduct un...
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. Centre for Child Care (Amicus Curiae) 2017 JDR 1841 (GP).
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. Xxxxxx v. Canada (Attorney General) [2002] 2 SCR 764 Xxxxxx v. Canada (Attorney General) [2004] SCC 33
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:
1. Portions of the periodic payments are made specifically applicable to equity to be acquired by the lessee.
2. The lessee will acquire title to the property upon payment of a stated amount of "rentals" that, under the contract, the lessee is required to make.
3. The total amount that the lessee is required to pay for a relatively short period of use constitutes an inordinately large proportion of the total sum required to be paid to secure the transfer of title to the property.
4. The agreed "rental" payments materially exceed the current fair rental value of the property. This may be indicative that the payments include an element other than compensation for the use of the property.
5. The property may be acquired under a purchase option at a price that is nominal in relation to the value of the property at the time when the option may be exercised, as determined at the time of entering into 9 KAYE, XXHOXXX, XXERMAN, HAYS & XANDLER SC International Services, Inc. -6- September 20, 1995 the original agreement, or that is a relatively small amount when compared with the total payments that are required to be made under the lease and the option agreement.
6. Some portion of the periodic payments is specifically designat...
Case Law. Case law in Colorado is virtually non-existent with respect to cohabitation agreements; however, the Colorado Supreme Court as recognized the significance of these contracts.
