Haraldur Steinþórsson

The Rule of Reason Related to the Interpretation of Article 81(1) of the ToR and block Excemptions - Semester Paper -

Professor: Josef Bejček Masaryk University – Faculty of Law April 2005

Table of Contents Preface............................................................................................................................. 2 1. Rule of Reason in the US.............................................................................................3 2. The EU.........................................................................................................................4 2.1 General.................................................................................................................. 4 2.2 Block exemptions..................................................................................................4 2.3 Other exemptions.................................................................................................. 5 2.3.1 The De Minimis doctrine.............................................................................. 5 2.3.2 Other limiting factors.................................................................................... 6 2.4 Existence of a Rule of Reason analysis?...............................................................6 2.4.1 General.......................................................................................................... 6 2.4.2 Judgements.................................................................................................... 7 2.5 The Commission................................................................................................. 12 3. Conclusion................................................................................................................. 14 Bibliography.................................................................................................................. 16

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Preface. Many of the judgements of the European Court of Justice (ECJ), and later also the Court of First Instance (CFI) have from the very beginning been controversial, and many challenge its application of some of the Communities rules, which sometimes is very dynamic. Competition policy is no exception thereof. One subject that scholars like to argue over is the possible existence of a doctrine with the name Rule of Reason, in the courts application of Art. 81 of the Treaty of Rome (ToR) - with later amendments. The concept Rule of Reason can be explained in a number of ways. It can mean that as a rule, one should go about in his tasks in a reasonable and well-founded manner, as the opposite of acting blindly on the basis of rules that can perhaps lead to unreason­ able conclusions. The concept also stands for a doctrine developed by the US Supreme Court of Justice in its attempt to determine non per se violations of the Sherman Antitrust Act of 1890, that is whether agreements have such restraints on trade that they fall under section 1 of the Act. The third possibility is that the Rule of Reason is a general principle of EC competition law, stating that competition authorities and the judiciary should be concerned with the practical consequences for competition, when examining possibly restrictive market practices, and not focus solely on the structural characteristics of markets which might, in theory, create opportunities for anticom­ petitive practice.1 In this paper we will examine if, and to what extent a Rule of Reason exists under EC competition law, in the context of determining whether an agreement falls under Article 81(1) of the ToR. In order to do this, one must look at the application of Article 81(1) by the ECJ, CFI and the commission, in addition to the exceptions to that provision, Article 81(3) and the so called Block Exemptions. In the first chapter, the origin and substance of the US Rule of Reason will be covered briefly. In the second we will examine shortly the idea behind block exemptions and other exceptions from Article 81(1), and look at several judgements of the Community Courts, for indications of a Rule of Reason. In the third and final chapter, we will try to 1 See: Pearson Education Online Glossary.

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come to a conclusion as to the question whether a Rule of Reason can be said to exist in the European Competition Policy, and if so, what can be said of its content.

1. Rule of Reason in the US The origin of the American Rule of Reason has been traced to the necessity to give the US Sherman Antitrust Act from 1890 more flexibility, in order to avoid too strict interpretation of Section 1 of the Act.2 The RoR was declared in 1911 as the standard of legality under Section 1 of the Sherman Act, when the Supreme Court found Standard Oil Company in violation of Section 1, because of its restrictions on trade, in particular its practices of eliminating competitors by buying them out and driving them out of business by predatory pricing. In this historic decision, the RoR became an important legal standard, which stated that large size and monopoly in themselves are not necessarily bad and do not a priori violate the Sherman Antitrust Act. Rather, it is the use of certain tactics to attain or preserve such position that is illegal. The RoR has for a long time since been a leading tool, in determining whether an action is suffic­ iently anticompetitive, in purpose or effects, to be an unreasonable restraint of trade, with regard to the above mentioned section of the Sherman Act.3 The US courts have been said to use a three-step test to govern analysis under this Rule of Reason.4 First, a plaintiff must produce prima facie evidence showing that the re­ straints in question produce perceivable anticompetitive harm, which usually consists of proof of "actual detrimental effects” such as increased price or reduced output. Second, the defendant must prove that the alleged anti-competitive acts produce "pro­ competitive” benefits that outweigh the harm implicit in plaintiff’s prima facie case. Third, despite the defendants success in the second step, the plaintiff can still try to prove that the defendant can achieve the same benefits by means of a "less restrictive alternative”, using a type of principle of proportionality. This three-part test is said to help courts and antitrust authorities to distinguish those contracts that harm competition, by creating or exercising market power, from those that promote it. The Supreme Court has described the doctrine's evaluation as 2 Quinn, Eugene R.: Antitrust Basics. 3 Dresslar: California Antitrust Law. 4 Messe: Price Theory, Competition, and the Rule of Reason, p. 3.

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weighing "all the circumstances of a case in deciding whether a restrictive practice should be prohibited as imposing an unreasonable restraint on competition"5. In National Society of Professional Engineers the court said that "[t]he true test of legality is whether the restraint imposed is such as merely regulates and perhaps thereby pro­ motes competition or whether it is such as may suppress or even destroy competition".6

2. The EU 2.1 General It can be said that the application of the Rule of Reason doctrine in the US Supreme Court was a realistic application of the Sherman Act, which did not have any exemption clauses for breach of Section 1. On the other hand the makers of Article 81 of the ToR foresaw a part of the problems that might arise from the use of the strictly worded provision of Art. 81(1), and hence added an exemption provision, Art. 81(3), in order to balance the former out. Later, block exemptions and the de minimis doctrine were introduced, so that restrictions that can be deemed not so detrimental to compe­ tition on the inner market, can be left alone by competition authorities. These exemptions, as well as a proper understanding of the actual applicability of Art. 81(1), are even more important after Reg. 1/2003 was set in force, because national competition authorities and courts in the member states are largely bound by the interpretation of the Community courts.7

2.2 Block exemptions Under Article 81(3) the Commission is capable of declaring the provisions of Art. 81(1) inapplicable in case of individual agreements which in the eyes of the Commission objectively meet the criteria contained in the first mentioned provision. Thus agreements that are capable of breaking down national barriers and furthering economic progress in the internal market, can be allowed despite technically falling under the scope of Art. 81(1).

5 433 US 36, 49 (1977). 6 435 U.S. 679 (1978). 7 This applies also to the EFTA-side of the European Economic Area (EEA), see for an example the Icelandic Competition Act No. 4/2005, which was written in conformity with i.e. Art. 81 of the ToR.

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Article 81(3) also gives the Commission the power to declare Art. 81(1) inapplicable to a category of agreements, decisions and concerted practices between undertakings. Building on the experience of past individual exemptions, the Commission has made a series of so called block exemptions, in certain areas where it has been proven that the ban of Art. 81(1) does not always help competition in a given market. These block exemptions, like the individual exemptions, only apply when an agreement has been found to fall within the broad scope of Art. 81(1). They also usually contain provisions that limit the size of the undertakings that fall under them, and the type of provisions that can be used in an exempted agreement must be proportional to the justifying aim of the agreement.8 Furthermore, certain restrictions are never allowed in block ex­ emptions. Even though most of the criteria in the block exemptions are meant to be measured objectively, these exemptions can still be called reasonably construed, as they are built upon older individual exemptions, and on the Commission's valuations of what kind of areas and what type of agreements deserve to be exempt from Art. 81(1). They can therefore be called reasonable creations.

2.3 Other exemptions Unlike its US counterpart, there are black letter exceptions readily available for acts that fall under Art. 81(1) of the ToR. These exceptions are based on the view that not all agreements that objectively fall under the provision should be banned. 2.3.1 The De Minimis doctrine

Article 81(1) prohibits agreements between undertakings that have "as their object or effect the prevention, restriction or distortion of competition within the common market." An agreement that can not have as its object affect an appreciable impact on competition can in accordance with a reasonable interpretation of Art. 81(1) be exempt from its scope, if it meets certain requirements, set out in the Commissions Notice on agreements of minor importance which do not appreciably restrict competition under Article 81(1). The view behind this doctrine is that an agreement can be of such a small scale, that it does not have noticeable affects on the EC's goal towards an internal 8 Craig & De Búrca, page 968.

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European market or competition therein. In a similarly reasonable manner, a network of these small agreements can be said to restrict competition in the meaning of Art. 81(1), if their cumulative effect is a foreclosure of a given market.9 2.3.2 Other limiting factors

In addition to this, some interpretations of the ECJ have had the effect of limiting the reach of Article 81(1). Examples of this is the exclusion of agreements required by national legislation, agency agreements, agreements between employers and unions of workers (the interpretation of the word "agreements") and the limited interpretation of the word "undertaking", precluding i.e. some firms that handle state power and agreements made between undertakings acting as "a single economic unit".

2.4 Existence of a Rule of Reason analysis? 2.4.1 General

Despite the existing exemptions, that limit the impact of Art. 81(1), it has long been thougth to sensible to limit the grasp of the provision, and many would say that too strict of a definition could cover a very large share of all sales agreements made, that touch upon the internal market.10 The question has been asked, whether the composers of Art. 81(1) expected the ECJ to give shape to the statute's broad provisions, or apply it as is (per se), and then evaluate, using the available Article 81(3) (and later the block exemptions), whether it should be excepted from the detriments of being in breach of Community law. The question is therefore about interpretation. Given the wording of Art. 81(1), too strict of an interpretation might be very impractical, giving rise to much work for the Commission, forcing it to look into practically every major agreement made within its jurisdiction. Therefore it can be said that the Community institutions have to adopt a more general approach in interpreting the provisions in questions, looking further than just into their wording.

9 See her the Delimitis case, C-234/89, where a network of beer supply agreements in Germany had the effect of foreclosing the market in a certain area for the distribution of beer, and was therefore prohibited by Article 85(1) (now 81(1)). See also Brasserie de Haecht v Wilkin C-23/67. 10 See Goyder, D.G., page 93,

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The Commission has been said to have adopted a maximalist approach when applying Art. 81(1), whereas the ECJ has looked more into economic circumstances surrounding a particular case.11 The ECJ's approach has also been called "modern economic thinking", for example that vertical restraints on competition are not automatically marked as anti-competitive12, but one must look at the situation of the market, barriers to entry, existing competition, etc. Part of this is the De minimis doctrine, and other exemptions. 2.4.2 Judgements

Since the leading forces in interpreting the scope of Article 81(1) are the community courts, it is in order to review some of their most noticeable judgements, in respect of this essay's topic. In STM C-56/65 the company STM had gained the exclusive rights to sell in France a certain type of equipment produced by the German company MBU. The agreement between the undertakings did however not entail a ban on parallel imports into France. In denying the applicability of Art. 81(1) – then Art. 85(1) – the court said that "[t]he competition in question must be understood within the actual context in which it would occur in the absence of the agreement in dispute. In particular it may be doubted whether there is an interference with competition if the said agreement seems really necessary for the penetration of a new area by an undertaking. Therefore, in order to decide whether an agreement containing a clause 'granting an exclusive right of sale' is to be considered as prohibited by reason of its object or of its effect, it is appropriate to take into account in particular the nature and quantity, limited or otherwise, of the products covered by the agreement, the position and importance of the grantor and the concessionnaire on the market for the products concerned, the isolated nature of the disputed agreement or, alternatively, its position in a series of agreements, the severity of the clauses intended to protect the exclusive dealership or, alternatively, the opportunities allowed for other commercial competitors in the same products by way of parallel re-exportation and importation." 11 Sufrin, Brenda & Jones, Alison: EC Competition Law, page 494. 12 Sufrin, Brenda & Jones, Alison: EC Competition Law, page 495.

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It is clear that the ECJ did not want to declare the agreement in breach of Art. 81(1), based on the sole fact that it contained some competitive-restricting provisions. In the judgement the ECJ was also asked about the interpretation of the words "Any agreements or decisions prohibited pursuant to this article shall be automatically void", to which it replied that the provision could only be interpreted with "reference to its purpose in Community Law" and that it "must be limited to this context". From this judgement it seems that we can come to the following conclusions about the early scope of Article 81(1): When the object of an agreement can clearly be said to be anti competitive, there is no further analysing necessary.13 On the other hand, an economic analysis within the sphere of the provision might be necessary when we can not clearly conclude that an agreement's objective is harmful to competition, its effects should then be examined. How detrimental are the restrictions, and are they proportional to any desirable effects that they have? Of course in case of hard core restrictions, whose object clearly have detrimental effects on the market, such as price fixing or blatant market division, there is most often no question of the applicability of Art. 81(1). In Consten and Grundig14 and later judgements concerning Article 81, the ECJ has said that it is not necessary to investigate the real effect of some restrictions in an agreement, when it is clear that the object was to restrict competition. The CFI in its judgement T-368/00 put it this way: "According to consistent case-law ... there is no need to take account of the concrete effects of an agreement when it has as its object the prevention, restriction or distortion of competition ... There is therefore no need to examine the arguments of the parties concerning the concrete effects of the measure in question." In Night Services T-374/94 (and others combined), the Court of First Instance offered one of its version of when consideration of (then) Article 85(3) should come into question:15 13 The word object in this context means what can objectively be interpreted from the provisions of an agreement. See i.e. Bellamy & Child: European Community Law of Competition, page 100: "The "object" of the agreement is to be found by an objective assessment of the aims of the agreement in question, and it is unecessary to investigate the parties subjective intentions" 14 C-56 and 58/64 (Consten and Grundig). 15 All emphasis in quotations in this paper are added by the author.

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"… The Commission submits that, whilst the analysis of an agreement must take account of its economic context, it does not follow that the rule of reason – a concept which the Court of Justice has hitherto declined to embrace – should be resorted to … Consequently, it is necessary to balance the competitive benefits and harms of an agreement in relation to the granting of exemptions under Article 85(3) of the Treaty but not in respect of the appraisal of restrictions on competition – which were, contrary to the United Kingdom’s contention, fully explained in the decision – in accordance with Article 85(1). Before any examination of the parties’ arguments as to whether the Commission’s analysis as regards restrictions of competition was correct, it must be borne in mind that in assessing an agreement under Article 85(1) of the Treaty, account should be taken of the actual conditions in which it functions, in particular the economic context in which the undertakings operate, the products or services covered by the agreement and the actual structure of the market concerned (judgments in Delimitis, cited above, Gottrup-Klim, cited above, paragraph 31, Case C-399/93 Oude Luttikhuis and Others v Verenigde Coöperatieve Melkindustries [1995] ECR I-4515, paragraph 10, and Case T-77/94 VGB and Others v Commission [1997] ECR II-759, paragraph 140), unless it is an agreement containing obvious restrictions of competition such as pricefixing, market-sharing or the control of outlets (Case T-148/89 Tréfilunion v Commission [1995] ECR II-1063, paragraph 109). In the latter case, such restrictions may be weighed against their claimed procompetitive effects only in the context of Article 85(3) of the Treaty, with a view to granting an exemption from the prohibition in Article 85(1)." In this judgement it seems that the CFI is of the opinion that in some cases, balancing of beneficial and detrimental effects are appropriate. In Métropole Télévision v Commission (T-112/99), the CFI stated that "[i]n assessing the applicability of Article 81(1) to an agreement, account should be taken of the actual conditions in which it functions, in part­

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icular the economic context in which the undertakings operate, the products or services covered by the agreement and the actual structure of the market concerned. It must, however, be emphasised that such an approach does not mean that it is necessary to weigh the pro and anticompetitive effects of an agreement when determining whether the prohibition laid down in Article 81(1) of the Treaty applies” The CFI expressed its view that an agreement must be considered "in context"16, and it is clear from the judgement that in some cases restrictions may be necessary and thus not considered to fall within Art. 81(1), in order to achieve EC's goal with regard to competition and economic prosperity in the internal market. Further, the CFI said that the Night Service judgement was not comparable, because it handled "restrictions on conduct, not competition". From this judgement, albeit it is from the CFI and not ECJ, it is possible to conclude that even though an economic approach is sometimes appropriate, that does not mean that all anti- and pro-competitive effects should be put on a weight receptor, in order to determine which one is greater. Both courts distinguish between hard core restrictions and their soft-core counterparts. An example of that is Nungesser C-258/78 where the ECJ, while condemning aspects of the agreement in question which conferred absolute territorial protection for an German supplier of seeds, said that the grant of an open exclusive licence, which did not affect the position of parallel importers and licensees for other territories, was not in itself incompatible with (now) Art. 81(1), and that concerns regarding the protection of new technology, which was the object of the agreement in question, were justified. Surely this part of the agreement restricted competition in some sense, but was none the less found to fall outside the scope of Art. 81(1). For that reason the provisions of Art. 81(3) were not needed for justification, although consideration of that provision most likely would have led to the same conclusion. Similarly, ECJ has said that restrictions in i.e. licencing of intellectual property rights do not essarily infringe Art. 81(1), if they are deemed to be necessary to protect investment. Another judgement worth mentioning is Wouters C-309/99, where ECJ said that 16 Sufrin, Brenda & Jones, Alison: EC Competition Law, page 205.

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"whether conduct is compatible with Article 85(1) must be assessed in the economic and legal context of the case, .. taking into account the nature of the product .. or service .. and the structure and actual conditions in which the market functions" (Art. 85 now Art. 81)." Even provisions that right out prevent competition, within certain limits, can fall out­ side the scope of Art. 81(1) if there are sufficient reasons for such restrictions to justify them. In Gottrup Klim, C-250/92, a ban within an Danish association of farm supplies distributors, on "membership of, or any other kind of participation in, associations, societies or other forms of cooperative organization in competition" with the association was concluded not to be in breach of Art. 81(1). The purpose of the agreement was to exclude undertakings from membership of the association if they participated in associations, societies or other cooperative organizations which competed with said association on the relevant market. In its judgement the ECJ said the following about the pros and cons of such restrictions: "Where some members of two competing cooperative purchasing ass­ ociations belong to both at the same time, the result is to make each association less capable of pursuing its objectives for the benefit of the rest of its members, especially where the members concerned, as in the case in point, are themselves cooperative associations with a large number of individual members. It follows that such dual membership would jeopardize both the proper functioning of the cooperative and its contractual power in relation to producers. Prohibition of dual membership does not, therefore, necessarily constitute a restriction of competition within the meaning of Article 85(1) of the Treaty and may even have beneficial effects on competition. Nevertheless, a provision in the statutes of a cooperative purchasing ass­ ociation, restricting the opportunity for members to join other types of competing cooperatives and thus discouraging them from obtaining supplies elsewhere, may have adverse effects on competition. So, in order to escape the prohibition laid down in Article 85(1) of the Treaty, the restrictions imposed on members by the statutes of cooperative purchasing associations must be limited to what is necessary to ensure that the

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cooperative functions properly and maintains its contractual power in relation to producers."17 It is clear from this judgement that restrictions that fall within Art. 81(1) according to the wording of the provision can nevertheless escape its scope, if there are desired effects stemming from them, justifying any possible (necessary) detriments to the market and competition. Proper functioning of an organization somehow attributing to the common good can therefore be used as an excuse for measures that strictly speak­ ing fall under the prohibition of Art. 81(1), with respect to the principle of pro­ portionality.

2.5 The Commission In its White Paper on Modernisation of EC Antitrust Law from 1999, the Commission describes some of the measures taken in the past, to adjust to ever growing number of cases, among others decentralisation and quicker processing of cases. When talking of the interpretation of Article 85 (now 81), the Commission aknowledged some of the judgements mentioned above, and talked of the pros and cons of the adoptation of a rule of reason: "One option that is sometimes put forward is to change the interpretation of Article 85 so as to include analysis of the harmful and beneficial effects of an agreement in the assessment under Article 85(1). Application of the exemption provided for in Article 85(3) would then be restricted to those cases in which the need to ensure consistency between competition policy and other Community policies took precedence over the results of the competition analysis. It would in a way mean interpreting Article 85(1) as incorporating a "rule of reason". Such a system would ease the notification constraints imposed on undertakings, since they would not be required to notify agreements in order to obtain negative clearance.

17 Similarly, non-competing clauses can be justified by the essity to give effect to the sale of an undertaking. See Remia, C-42/84 ECR 2545 [1985].

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The Commission has already adopted this approach to a limited extent and has carried out an assessment of the pro- and anti-competitive aspects of some restrictive practices under Article 85(1). This approach has been endorsed by the Court of Justice. However, the structure of Article 85 is such as to prevent greater use being made of this approach: if more systematic use were made under Article 85(1) of an analysis of the pro- and anti-competitive aspects of a restrictive agreement, Article 85(3) would be cast aside, whereas any such change could be made only through revision of the Treaty. It would at the very least be paradoxical to cast aside Article 85(3) when that provision in fact contains all the elements of a "rule of reason". It would moreover be dangerous if modernisation of the competition rules were to be based on developments in decision-making practice, subject to such developments being upheld by the Community Courts. Any such approach would mean that modernisation was contingent upon the cases submitted to the Commission and could take many years. Lastly, this option would run the risk of diverting Article 85(3) from its purpose, which is to provide a legal framework for the economic assessment of restrictive practices and not to allow application of the competition rules to be set aside because of political considerations." It is interesting to see that on one hand the Commission aknowleges the practical use of an interpretation doctrine such as a rule of reason and admits to its adoptation to some extent, while on the other hand reasons that Article 81(3) contains all of the elements of a rule of reason. It therefore seems that their usage of this "reasonal method" is only in obedience with the ECJ's application of Art. 81, but contrary to the Commissions views none the less. This view (along with the CFI's reasoning in Métro­ pole confirming it, as mentioned in the next chapter) has been widely disputed, and the opinion that a balancing of effects within Article 81(1) is indeed fit to enhance the Community's competition policy, while still allowing for a distinctive role for Art. 81(3).18

18 See Craig & De Búrca, page 962.

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3. Conclusion Interpretation of the scope of Article 81(1) within the community has been coloured by increased flexibility as the time goes by, and the article has been said to affect fewer agreements in practice now than before.19 Although the concept of a "Rule of Reason" within EC competition law has been said to be sometimes only a slogan used by the opponents of the ECJ's and the Commission, many judgements of the Community courts strongly suggest that there is an underlying rule behind the attitude of eco­ nomical assessment and examinination of the context of individual cases, instead of focusing solely on the text or detrimental effects of an agreement.20 In the before mentioned Métropolé judgement, the CFI stated that "the existence of [a Rule of Reason] has not, as such, been confirmed by the Community courts", and that if something, the courts have gone to some lengths indicating that "the existance of such a rule is doubtful".21 Indeed, although this reasoning of the CFI can be considered as an overstatement, perhaps the Community's changing attitude towards Art. 81(1) should not be called a Rule of Reason, for the name might suggest that the US Rule of Reason doctrine has been adopted by the EC courts. This is not so, but it can be said that the courts modernizing approach is getting more reasonable. Although Article 81(3) does give the opportunity to weigh benefits of an agreement against its detriments and the block exemptions go a long way towards saving beneficial agreements, that does not neccessarily mean that the scope of Art. 81(1) should be interpreted so widely as to catch almost every agreement that might restrict competition in one way or another. As we have observed, agreements that are restrict­ ing in the strict sense of Art. 81(1) can be compatible to that article none the less. Without adopting the out-flat measurement of pros and cons of an agreement, like the US Supreme Court, the ECJ does in fact use some kind of balancing, when application of Art. 81(1) seems undesirable to some extent. For this, reason and sensibility are important, and a good addition to the objective inspection of the object and effect of an agreement. It is clear from the cited case-law that in many cases it is examined whether agreements under scrutiny impose unreasonable restraint on competition or not. Maybe 19 Goyder, D.G., page 93. 20 Wish: page 124. 21 Both the reasoning and the conclusion in Métropole have attracted some criticism from legal scholars, see i.e. Wish: EU Law, page 962.

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the concept "restriction on competition" can only be assessed in context to the market and other factors, and what at first seems to fall undir Art. 81, can after a closer examination be determined to be actually beneficial to competition and the market as a whole. Should this method of economic alanysis by the ECJ be called Rule of Reason or not, "a rose by any other name would still smell as sweet"22.

22 From Shakespeare's Romeo and Juliet.

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Bibliography Bellamy & Child: European Community Law of Competition. Sweet & Maxwell, 5th edn 2001. Meese, Alan J.: Price Theory, Competition, and the Rule of Reason. University of Illinois College of Law website: http://home.law.uiuc.edu/lrev/publications/2000s/2003/2003_1/Meese.pdf. Wish, Richard: Competition Law. Lexis Nexis Butterworth, 5th edn, 2000. Craig & De Búrca: EU Law – Text, Cases and Materials. Oxford University Press, 3rd edn, 2003. Dresslar, John H.: California Antitrust Law. The 'Lectric Law Library, undated. http://www.lectlaw.com/files/ant15.htm Gyoder, D.G.: EC Competition Law. Oxford University Press, 4th edn, 2003. Sufrin, Brenda & Jones, Alison: EC Competition Law. Oxford University Press, 2nd edn, 2004. Other sources: Pearson Education Online Glossary: http://media.pearsoncmg.com/intl/ema/ema_uk_he_lipczynski_indorg_2/0273688073_ glossary.html. Quinn, Eugene R.: Antitrust Basics. NYSTAR Law Library, http://nysstlc.syr.edu/lawlibrary/antitrust/antitrustbasics.aspx. White Paper on Modernisation of the Rules Implementing Articles 85 and 86 of the EC Treaty. European Commission Programme No 99/027, http://www.eu.int/comm/competition/antitrust/wp_modern_en.pdf. Judgements of the ECJ and the CFI: C-56/65 (STM) ECR-235 [1966]. C-56 and 58/64 (Consten and Grundig) ECR 299 [1966]. C-258/78 (Nungesser) ECR 2015 [1982]. C-250/92 (Gottrup Klim) ECR I-05641 [1994]. T-374/94 (Night Services) ECR II-03141 [1998]. T-112/99 (Métropole), ECR II-2459 [2001]. C-309/99 (Wouters) ECR I-1577 [2002]. Judgements of the US Supreme Court: 221 US 398 (1911) – Standard Oil Co. of New Jersey v. US. 433 US 36, (1977) – Continental TV Inc. v GTE Sylvania. 435 U.S. 679 (1978) – National Society of Professional Engineers v. U.S. 16