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ISBN 10: 1032921013
ISBN 13: 9781032921013
Author: Andrea Lista
Competition law is a complex and constantly evolving area of law which affects every aspect of the market economy, including the financial services sector. This book is a comprehensive and practical guide to the application of the EU competition rules to banking and insurance industries.
This book is divided into two parts: the first part explores the application of Articles 101, 102 and 107 TFEU to the insurance industry. Emphasis is placed on recent changes which have progressively eroded the block exemption regime that traditionally benefited the insurance industry.
In the second part of the book, focus is on the application of the Articles of TFEU to the banking industry, with specific reference to card payment systems, which give rise to some of the most intricate antitrust issues in the financial services sector. Relevant Commission decisions and European Court of Justice case law are discussed and suggestions are made for an alternative regulatory framework through comparative analysis of US regulations.
This book will be an invaluable reference point for legal practitioners specialising in EU Competition law, as well as postgraduate students and academic researchers working in competition law and the financial services sector.
EU Competition Law and the Financial Services Sector 1st Table of contents:
Part 1 Setting the Scene
1. The Meaning of EU Competition Law
1.1 The Meaning of EU Competition Law—The General Picture
1.2 Article 101 of the TFEU and the Control of Collusive Behaviors
1.2.1 Anticompetitive agreements under Article 101: Horizontal Agreements
1.3 Article 102 TFEU: Abuses of Dominant Position by One or More Undertakings: Meaning and Issues
1.4 State Aid
2. The Application of EU17 Competition Law to the Financial Services Sector: General Issues
2.1 Banking and Insurance Services: Two Faces of the Same Coin?
2.2 Competition Law and the Financial Services Sector
2.3 Features of Banking and Insurance Arrangements: The Importance of Competition Law
Part 2 Insurance
3. Setting the Scene: The Application of Article 101 to the Insurance Sector: The Early Stages and the First Block Exemption Regulation
3.1 Introduction
3.2 The Evolution of the Internal Market for the Insurance Industry
3.3 The Application of Competition Law to the Insurance Industry: General Issues and Background
3.4 EU Competition Policy in the Insurance Sector: The Early Years
3.5 The First Block Exemption Regulation: Council Regulation 3932/92
3.5.1 Cooperation with respect to the establishment of common risk premium tariffs
3.5.2 Standard policy conditions
3.5.3 Common coverage of certain types of risk
3.5.4 Security devices
4. The Recent Past Scenario: Regulation 358/2003114
4.1 Regulation 358/2003
4.1.1 The exemption of joint calculations and studies of risks under Regulation 358/2003
4.1.2 Common coverage of certain types of risks (pools)
4.1.3 Standard policy conditions
4.1.4 Joint determination of approved safety equipment
5. Regulation 267/2010: The Current Regulatory Framework for Horizontal Agreements in the Insurance Sector
5.1 The Current Regime: Regulation 267/2010
5.1.1 The new regime for joint compilations, tables, and studies under Regulation 267/2010
5.1.2 The new regime for co- and reinsurance pools
5.1.3 The future of agreements on Standard policy conditions
5.2 The Future of Joint Determination of Approved Safety Equipment
6. The Way Forward: A Future without the Eu Insurance Block Exemption?185
6.1 The Way Forward: Repealing the Eu Insurance Block Exemption
6.1.1 Repealing the block exemption for joint calculations and studies of risks?
6.1.2 Repealing the block exemption for the cooperation in form of coinsurance and reinsurance?
6.2 The U.S. Position
6.3 The Mccarran–Ferguson Act and the Eu Ber: Two Faces of the Same Coin?
6.4 Consequences of a Complete Repeal of the Insurance Block Exemption Regulation
6.4.1 More in defense of the current insurance antitrust status quo
6.5 Balancing the Truth: Economic Theories and Further Legal Considerations
6.5.1 A scenario without a block exemption
6.6 In Defense of the Idea of Free Competition
6.7 Conclusive Remarks
7. Article 102 TFEU and Mergers and Acquisitions in the Insurance Sector
7.1 Introduction
7.2 The EU Merger Regulation Regime
7.3 Insurance Mergers and the Analysis of the Relevant Geographic Market
7.3.1 The relevant geographic market and credit insurance
7.3.2 The geographic dimension of the market of marine, planes and aerospace risk insurance, and the market of reinsurance
7.4 The Analysis of the Relevant Product Market
7.4.1 The definition of the relevant product market in the insurance sector
7.4.2 The relevant product market and credit insurance
7.4.3 The relevant product market and reinsurance
7.4.4 The relevant product market test: analysis of the Commission’s approach
7.5 The Assessment of Dominance
7.5.1 The assessment of dominance: is the Commission’s approach deceitful?
7.6 The Impact of Mergers and Acquisitions in the Insurance Sector
7.7 Insurance Mergers and Acquisitions and the Sui Generis Commission Approach: A Critical Analysis
7.7.1 In defence of the concept of “collective dominance”: a possible valid alternative for the assessment of insurance mergers and acquisitions?
7.8 The Way Forward: A Possible Different Regime for Mergers and Acquisitions in the Insurance Sector?
7.9 Conclusive Remarks
8. State Aid and the Insurance Sector
8.1 State Aid
8.2 State Aid and the Insurance Sector
8.3 Commission Communication on the Application of State Aid Rules to Measures Taken in Relation to Financial Institutions in the Context of the Current Global Financial Crisis
8.3.1 Eligibility for a guarantee scheme
8.3.2 Temporal scope of the guarantee scheme
8.3.3 Aid limited to the minimum—private sector contribution
8.3.4 Avoidance of undue distortions of competition
8.3.5 Follow-up by adjustment measures
8.3.6 Recapitalization of financial institutions
8.3.7 Provision of other forms of liquidity assistance
8.4 State Aid in the Insurance Sector: The Early Decisions
8.5 State Aid in the Insurance Sector: Recent Decisions and Current State of Play
8.5.1 Aegon
8.5.2 Mutualité Fonction Publique
8.5.3 Current state of play
Part 3 Banking
9. The Application of EU Competition Rules to the Banking Industry: General Issues
9.1 Introduction
9.2 The Application of EU Competition Rules to the Banking Sector: General Issues
9.3 The Regulatory Framework for the Banking Sector
9.4 The Nature of the Banking Sector and Antitrust Issues
10. Article 101 TFEU and Price Competition Issues in the Banking Sector
10.1 Price Competition Issues in the Banking Industry: The Early Stage
10.2 The Zuchner Case and the Judicial Assessment of Price Agreements
10.2.1 The assessment of concerted practices: a realistic approach?
10.3 The Post-Zuchner Scenario
10.4 Conclusive Remarks
11. Payment Card Systems and Competition Concerns: Multilateral Interchange Fees and No-Discrimination Rules630
11.1 Background631
11.2 Competition Issues
11.3 Antitrust Assessment of Payment Card Systems
11.4 Multilateral Interchange Fees
11.5 MIFs and EU Competition Law
11.6 The Early Commission’s Decisions Relating to MIFs
11.7 The Post-Eurocheque Package Deal II Scenario and the Commission’s Notice on Cross-Border Transfers
11.7.1 Possibility of exemption under Article 101(3)
11.8 The Commission’s Decision in Visa International Multilateral Interchange Fee 2002
11.9 The Recent Commission Decisions in Mastercard Intra-EEA Fallback Interchange Fee
11.10 The Commission’s Decision in Visa International-Multilateral Interchange Fee 2002 and the Decision on Mastercard on Intra-Eea Fallback Interchange Fee: Two Faces of the Same Coin?
11.11 The Economic Perspective: Arguments Pro MIFs
11.11.1 Are MIFs essential conditions of any payment system?
11.12 More Economic Analysis: Arguments Contra MIFs
11.13 The Concrete Effects of MIFs
11.13.1 The impact on merchants
11.13.2 Effects on consumers
11.13.3 The impact on the internal market
11.14 No-Discrimination Rules
11.14.1 No-discrimination rules and EU competition law
11.14.2 The judicial approach to no-discrimination rules
11.15 Current State of Play and Possible Alternative Scenarios
11.15.1 The European position
11.15.2 The U.S. position
11.16 Possible Alternatives to MIFs
11.16.1 Bilateral agreements
11.16.2 Par collection systems
11.17 The Way Forward: Possible Regulatory Approaches to MIFs
11.17.1 A regulatory approach acknowledging the legality of MIFs
11.17.2 Full disclosure and strict regulation of costs
11.17.3 Regulatory approaches based on the introduction of a general prohibition of MIFs
11.18 Conclusive Remarks
12. Article 101 and Non-Price Competition Issues in the Banking Sector
12.1 Introduction
12.2 Access to Essential Facilities
12.3 Card Payment Systems: Essential Facility and Membership Criteria
12.4 The MountainWest Case and the U.S. Position
12.5 Essential Facility in the Banking Sector: The EU Perspective, A Different Approach
12.5.1 The SWIFT case
12.6 Exclusivity Rules: The Prohibition on Participants to Adhere to Other Payment Systems
12.7 Cooperation Agreements between Banks
12.8 The Relationship between Price and Non-Price Competition Issues
13. Article 102 and Mergers and Acquisitions in the Banking Sector
13.1 Introduction
13.2 Setting the Scene: The EU Merger Regulation
13.3 Mergers And Acquisitions In The Banking Sector
13.3.1 The relevant geographic market in banking services
13.3.2 The relevant product market
13.3.3 The assessment of consolidation in the banking sector
13.4 Mergers in the Banking Sector: The Empirical and Logical Perspectives
13.5 Mergers and Acquisitions in the Banking Sector: A Critical Analysis of the Legal Status Quo and Possible Suggestions for the Way Forward
13.5.1 A new map for the identification of the relevant geographical market?
13.5.2 Beyond the concept of interchangeability; new tools for the identification of the product market in the banking sector
13.5.3 Collective dominance or not collective dominance? A new assessment of consolidation for banking undertakings
13.6 Conclusive Remarks
14. Article 102 and Clearing and Settlement Services in the Banking Sector
14.1 Introduction
14.2 The Application of the EU Competition Rules to the Clearing and Settlement Sector: Meaning and Issues
14.3 Clearing and Settlement Services: A Competitive Market?
14.4 The Commission Decision in Clearstream
14.4.1 Grounds of the decision: the concept of relevant product market
14.4.2 The concept of relevant geographic market in clearing and settlement services
14.4.3 Dominant position
14.4.4 Abuse of dominant position
14.4.5 The refusal to supply clearing and settlement services to Euroclear
14.5 Recent EU Initiatives in the Securities Trading Before and After the Clearstream Decision: the Way Forward
14.6 The Current Scenario
15. State Aid in the Banking Sector
15.1 Introduction
15.2 State Aid in the Banking Industry: The Early Decisions
15.3 The German Landesbank Case
15.4 State Aid in the Banking Sector: The Financial Crisis Scenario
15.5 The Banking Communication
15.6 Communication on the Recapitalization of Financial Institutions
15.7 Impaired Assets Communication
15.8 Restructuring Communication
15.9 The Current Scenario
15.9.1 Communication on the return to viability and the assessment of restructuring measures in the financial sector
15.9.2 Communication Commission on the application, from 1 January 2011, of state aid rules to support measures in favor of banks in the context of the financial crisis
15.9.3 The Commission Communication on the application, from 1 January 2012, of state aid rules to support measures in favor of banks in the context of the financial crisis
15.10 State Aid in the Banking Industry: The Current Status Quo
Bibliography
Miscellaneous
Index
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