Second Condition. The second condition requires that a fair share of the benefits is passed on to the consumer. The Commission has defined consumers as “all direct or indirect users of the products covered by the agreement, including producers that use the products as an input, wholesalers, retailers and final consumers”.82 Thus, the net effect to those directly or likely to be affected by the agreement needs to be at least neutral, positive effect compensating for the actual or likely negative effects.83 The limited definition of a consumer seems to imply that the benefits only to those directly affected are taken into account. However, the Commission also recognizes benefits for the whole society where “the efficiencies lead either to fewer resources being used to produce the output consumed or to the production of more valuable products and thus to a more efficient allocation of resources”.84 However, like non-economic benefits cannot exist without the economic benefits, likewise here positive effects for the whole society can only add to the benefits for users, and not count alone.85 80 Commission, ‘Commission Notice – Guidelines on the applicability of Article 81 of the EC Treaty to horizontal cooperation agreements’ 2001/C 3/02, para 193. 81 W. Xxxxxxx, ‘Sustainability and article 101 TFEU: An economic approach’ (2012, Master Thesis, Tilburg University) <xxxx://xxxx.xxx.xx/xxxx.xxx?fid=127141> accessed 6 Jan 2020. 82 Commission (n 74) para 84. 83 Ibid para 85. 84 Ibid. 85 X. Xxxxxxxxx, ‘How does article 101(3) TFEU case law relate to EC guidelines and the welfare perspective?’ (2013, Working paper of SEO Economic Research). Applying this to corporate renewable PPAs, the sustainability benefits (as established before, this is already problematic under the first condition, but assuming they would count as ‘benefits’) they imply are benefits generally to the whole society, not those on direct or indirect users. Thus, under the narrow interpretation, these benefits would not count, and neither would it be seen that they would be passed on to the consumers. Moreover, the problem with the narrow interpretation from the point of view of corporate renewable PPAs is that often the efficiencies that materialize only do so in the future, and thus the consumers that would be hurt by the corporate renewable PPAs would not be the same consumers that would enjoy the benefit of the efficiencies.86 Also, the pass-on to consumers would occur with a time lag. The Commission has stated t...
Second Condition. Fair share to consumers
Second Condition. Subject to waiver in accordance with clause 8.3, Second Completion is subject to and conditional upon no Material Adverse Change (excluding any event set out in paragraphs (A) and (B) of Schedule 6) having occurred at any time following First Completion.
Second Condition. This Warrant shall become exercisable for Fifty Thousand (50,000) additional shares (the "SECOND CONDITION SHARES") of Warrant Stock (subject to any and all adjustments as provided herein, including without limitation any adjustments in connection with events occurring prior to the date on which this Warrant first becomes exercisable for the Second Condition Shares) on and as of 5:00 PM, Eastern time, on December 31, 2000, if the Borrower on or before such date shall not have repaid in full all principal advances by Fleet under the Loan Agreement and otherwise fully and timely performed all of its obligations (including without limitation payment of all accrued interest, late payment fees and other charges) thereunder. For purposes hereof:
