Competition Law
Námskeið L-303 Samkeppnisréttur - Höfundar: Richard Whish, David Bailey
5.790 kr.
Námskeið
- L-303 Samkeppnisréttur
- LÖG106F Samkeppnisréttur I
Ensk lýsing:
Whish and Bailey's Competition Law is the definitive textbook on this subject. An authoritative treatment of competition law is paired with an easy-to-follow writing style to make this book a comprehensive guide to the subject; essential reading for law students, practitioners, and officials. The authors explain the purpose of competition policy, introduce the reader to key concepts and techniques in competition law and provide insights into the numerous different issues that arise when analysing market behaviour.
Describing the law in its economic and market context, they particularly consider the competition law implications of business phenomena, including distribution agreements, licences of intellectual property rights, cartels, joint ventures, and mergers. The book assimilates a wide variety of resources, including judgments, decisions, guidelines, and periodical literature. An authoritative treatment of competition law is paired with an easy-to-follow writing style to make this book a comprehensive guide to the subject, regularly used in universities, law firms, economic consultancies, competition authorities, and courts.
Lýsing:
An unparalleled guide: the definitive resource on competition law. Definitive, clear, and comprehensive: Whish and Bailey's Competition Law is the stand-alone resource on competition law for students and practitioners, written by the leading academics in the field. An authoritative treatment of competition law is paired with an easy-to-follow writing style to make this guide essential reading. Key features - Written by leading academics in the field, offering a wealth of experience to make this the definitive textbook on competition law - A critical and contextual approach, addressing the wider economic and practical realities of competition law - An easy-to-follow writing style, bringing competition law to life for students of all levels - Assimilates a wide variety of resources, including judgments, decisions, guidelines, and periodical literature - Regularly used in universities, law firms, economic consultancies, competition authorities and courts New to this edition - Coverage of the new block exemptions and guidelines for vertical agreements, both in the EU and the UK - Coverage of the new block exemptions and guidelines for horizontal cooperation agreements, both in the EU and the UK - Reference to other initiatives such as the EU Foreign Subsidies Regulation and the UK National Security and Investment Act - Discussions of the latest position on digital platforms and the legislative changes made to address this, both in the EU and the UK - Coverage of important policy initiatives, including the sustainability agenda and the Commission's review of Article 102 Digital formats.
Annað
- Höfundar: Richard Whish, David Bailey
- Útgáfa:11
- Útgáfudagur: 2024-08-05
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- Format:ePub
- ISBN 13: 9780198906056
- Print ISBN: 9780198906032
- ISBN 10: 0198906056
Efnisyfirlit
- Cover Page
- Title page
- Copyright page
- Preface to the eleventh edition
- New to this edition
- Table of Contents
- Table of treaties and conventions
- Table of EU legislation
- Regulations
- Decisions
- Directives
- Rules
- Statutes
- Table of statutes and statutory instruments
- National Legislation
- Australia
- Austria
- Canada
- France
- Germany
- Hungary
- India
- Ireland
- Italy
- Mexico
- Poland
- South Africa
- United Kingdom
- United States
- Secondary Legislation
- National Legislation
- Decisions
- Publications
- Reports
- International Bodies
- European Union
- National Bodies
- United Kingdom
- United States
- Table of European Cases
- Commission Decisions
- European Court of Justice
- Alphabetical Table of General Court Cases
- Alphabetical Table of Court of Justice Cases
- Opinions of the Court of Justice
- International Courts and Tribunals
- European Court of Human Rights
- EFTA
- National courts and tribunals
- Australia
- Austria
- Belgium
- Bulgaria
- Canada
- Denmark
- France
- Germany
- Hong Kong
- Ireland
- Italy
- Lithuania
- Netherlands
- Portugal
- Serbia
- Singapore
- South Africa
- Spain
- Sweden
- United Kingdom
- Competition Appeal Tribunal
- FCA
- OFCOM
- Office of Rail and Road (ORR)
- OFGEM
- OFT
- OFTEL
- OFWAT
- United States
- 1. Introduction
- (A) The growth of competition law
- (B) Competition law and economics
- (C) Plan of this chapter
- 2. Overview of the Practices Controlled by Competition Law
- 3. The Theory of Competition
- (A) The benefits of competition
- (i) Allocative efficiency
- (ii) Productive efficiency
- (iii) Dynamic efficiency
- (B) The harmful effects of monopoly
- (C) Limits to the benefits of competition
- (i) The model of perfect competition is based on assumptions unlikely to be observed in practice
- (ii) Competition is not a panacea to cure all problems
- (iii) Agreements to restrict competition may be beneficial
- (iv) Natural monopolies: economies of scale and scope
- (v) Network effects and tipping
- (a) Network effects
- (b) Tipping
- (c) Competition policy implications
- (A) The benefits of competition
- (D) Competition policy in times of crisis
- (E) Competitions are there to be won
- (F) Empirical evidence
- (G) Effective competition
- (H) Conclusion
- (A) The consumer welfare standard
- (B) The Chicago School and consumer welfare
- (C) The Neo-Brandeisian School
- (D) Consumer welfare in the EU and the UK
- (A) Market definition
- (B) Circumstances in which it is necessary to define the relevant market
- (i) EU competition law
- (ii) UK competition law
- (C) International guidance on market definition
- (D) The Commission’s Notice on the definition of the relevant market for the purposes of Union competition law
- (i) The concept of the relevant market
- (a) Demand substitution
- (b) Supply substitution
- (c) Geographic market definition
- (ii) The process of defining markets
- (a) Evidence to define the product market
- Product characteristics, prices, intended use and general customer preferences
- Evidence on past substitution
- Evidence on hypothetical substitution
- Evidence on competition constraints based on industry views
- Barriers and costs associated with switching demand to potential substitutes
- Implementation of the SSNIP test
- (b) Evidence to define the geographic market
- Identity of available suppliers, market shares and prices
- Customer preferences and purchasing behaviour
- Barriers and costs associated with supplying customers in different areas
- Distance-related factors, transport costs and catchment areas
- Trade flows and pattern of shipments
- (c) Gathering and evaluating evidence
- (a) Evidence to define the product market
- (iii) Market definition in specific circumstances
- (a) Market definition and differentiated products
- (b) Market definition and price discrimination
- (c) Market definition and R&D
- (d) Market definition and multi-sided platforms
- (e) Market definition and after markets, bundles and digital ecosystems
- (i) The concept of the relevant market
- (i) Market definition is a legal requirement
- (ii) Commission decisions are not binding precedents
- (iii) The Commission is not obliged to apply the SSNIP test
- (iv) The Commission’s ‘margin of appreciation’
- (i) The relevance of market power
- (ii) The meaning of market power
- (iii) The assessment of market power
- (iv) Actual competitors
- (a) Market shares
- (b) Market concentration and the Herfindahl-Hirschman Index
- Example 1
- Example 2
- Example 3
- 1. Introduction
- 2. EU Law
- (A) The EU Treaties
- (i) The competition chapter in the TFEU
- (ii) The single market imperative
- (iii) Economic and monetary union
- (iv) The modernisation of the substance and enforcement of EU competition law
- (B) Institutions
- (i) Council of the European Union
- (ii) European Commission
- (iii) General Court
- (iv) Court of Justice
- (v) Advisory Committee on Restrictive Practices and Dominant Positions
- (vi) Advisory Committee on Concentrations
- (vii) National competition authorities
- (viii) National courts
- (ix) European Parliament
- (C) European Economic Area
- (D) Modelling of domestic competition law on Articles 101 and 102
- (A) The EU Treaties
- 3. UK Law
- (A) Competition Act 1998
- (B) Enterprise Act 2002
- (C) Changes to domestic law as a result of Regulation 1/2003
- (D) Enterprise and Regulatory Reform Act 2013
- (E) Consumer Rights Act 2015
- (F) Brexit
- (G) Subsidy control
- (H) Internal market
- (I) Digital Markets, Competition and Consumers Act 2024
- (J) Institutions
- (i) Secretary of State and the Department for Business and Trade
- (a) Appointments
- (b) Amendment of legislation, the adoption of delegated legislation and the making or approval of guidance
- (c) Receipt of performance report
- (d) Involvement in individual cases
- (ii) The Lord Chancellor
- (iii) The CMA
- (a) Establishment of the CMA
- (b) The CMA Board
- (c) The CMA Panel
- (d) Office for the Internal Market
- (e) Subsidy Advice Unit
- (f) Digital Markets Unit
- (g) The staff of the CMA
- (h) The CMA’s strategy
- (i) Annual Reports on performance and concurrency
- (j) Competition functions of the CMA
- (k) Consumer functions of the CMA
- (l) Other functions of the CMA
- (m) Rules
- (n) Publications, information, guidance etc
- (iv) Serious Fraud Office
- (v) Sectoral regulators
- (vi) Competition Appeal Tribunal
- (a) Establishment of the CAT
- (b) Functions of the CAT
- (c) Rules
- (vii) Civil courts
- (viii) Criminal courts
- (i) Secretary of State and the Department for Business and Trade
- (A) Introduction
- (B) Regulation 1/2003
- (i) Obligation to apply Articles 101 and 102
- (ii) Conflicts: Article 101
- (iii) Conflicts: Article 102
- (iv) Protection of ‘other legitimate interests’
- 1. Introduction
- 2. Undertakings and Associations of Undertakings
- (A) Meaning of undertaking
- (i) Need to adopt a functional approach
- (ii) ‘Engaged in an economic activity’
- (a) Offering goods or services on a given market is an economic activity
- (b) No need for a profit-motive or economic purpose
- (c) Sport
- (d) ‘Regardless of the legal status of the entity and the way in which it is financed’
- (iii) Activities that are not economic
- (a) Solidarity
- (b) Activities connected with the exercise of the powers of a public authority are not economic
- (c) Procurement that is ancillary to a non-economic activity is not economic
- (iv) The professions
- (v) Employees, trades unions and collective labour relations
- (a) Employees
- (b) Trade unions
- (c) Collective labour relations
- (d) Collective agreements of self-employed persons
- (A) Meaning of undertaking
- (B) ‘Associations of undertakings’
- (i) Meaning of association of undertakings
- (ii) Need to adopt a functional approach
- (C) The ‘single economic entity’ doctrine
- (i) Meaning of single economic entity
- (ii) The Viho judgment
- (iii) The test of decisive influence
- (a) Parent and wholly owned subsidiaries
- (b) Majority shareholders
- (c) Minority shareholders
- (d) Parents of a joint venture
- (iv) Implications of the economic entity doctrine
- (D) Corporate reorganisation
- (E) Liability for competition law infringements when one business is sold to another
- (A) Agreements
- (i) Examples of agreements
- (ii) Factors that do not affect the existence of an agreement
- (iii) Agreement ‘and/or’ concerted practice
- (iv) Single and continuous infringement
- (a) Introduction
- (b) Conditions for establishing an SCI
- (c) Implications of a finding of an SCI
- (d) Partial liability for an SCI
- (e) Single and repeated infringement
- (v) ‘Unilateral’ conduct and Article 101(1) in vertical cases
- (a) AEG-Telefunken v Commission; Ford v Commission
- (b) Subsequent cases prior to Bayer
- (c) Bayer v Commission
- (d) Cases following Bayer
- (e) Comment
- (i) Meaning of concerted practice
- (ii) Must a concerted practice have been put into effect? The need for a ‘causal connection’
- (iii) Proof of a concerted practice
- (iv) Concluding comment on concerted practices
- (A) Horizontal and vertical agreements
- (B) Horizontal agreements: actual and potential competition
- (i) Paroxetine: the meaning of potential competition
- (ii) Cases on potential competition
- (C) The ‘object or effect’ of preventing, restricting or distorting competition
- (i) ‘Object or effect’ to be read disjunctively
- (ii) The ‘object’ and ‘effect’ boxes
- (iii) Why does Article 101(1) prohibit object restrictions without proof of anti-competitive effects?
- (D) Agreements that have as their object the prevention, restriction or distortion of competition
- (i) Meaning of ‘object’
- (ii) The legal test for identifying restrictions by object
- (a) Introduction
- (b) Groupement des Cartes Bancaires
- (c) Object restrictions should be interpreted restrictively
- (d) Is it possible to add ‘new’ agreements to the object box?
- (iii) How much analysis of the economic and legal context is required to allocate cases to the object box?
- (iv) Are pro-competitive effects relevant to the economic and legal context?
- (v) Object restrictions and the de minimis doctrine
- (vi) Is it possible to justify object restrictions under Article 101(3)?
- (vii) Object restrictions and per se rules under the Sherman Act
- (viii) The contents of the object box
- (a) Price fixing and exchanges of information about prices
- (b) Market sharing, quotas, collective exclusive dealing
- (c) Pay for delay agreements
- (d) Controlling outlets; export bans
- (e) Benchmark manipulation
- (i) Meaning of ‘effect’
- (ii) The need to establish a ‘counterfactual’
- (iii) Effects analysis
- (i) Jurisprudence on objective necessity
- (ii) The objective necessity defence and the rule of reason
- (A) Introduction
- (B) The Commission’s Notice on Agreements of Minor Importance
- (i) Part I of the Notice: introductory paragraphs
- (ii) Part II of the Notice: the threshold
- (iii) Part II of the Notice: the treatment of object restrictions
- (C) Other examples of non-appreciability
- (A) The effect on trade criterion
- (i) General principles
- (ii) The concept of ‘trade between Member States’
- (iii) The notion ‘may affect’
- (iv) The concept of appreciability
- (a) Small and medium-sized businesses
- (b) A negative rebuttable presumption of non-appreciability
- (c) A positive rebuttable presumption of appreciability
- 1. Introduction
- (A) Burden and standard of proof
- (B) The relationship between Article 101(1) and 101(3)
- (C) The conditions of Article 101(3) are cumulative
- (D) Any type of anti-competitive agreement can be defended under Article 101(3)
- (i) Restrictions of competition by object and Article 101(3)
- (ii) Fixing prices and Article 101(3)
- (A) First condition of Article 101(3): an improvement in the production or distribution of goods or in technical or economic progress
- (i) The agreement must produce objective advantages
- (ii) The benefits must be substantiated
- (iii) Economic and non-economic benefits
- (iv) A narrow view of Article 101(3)
- (v) A broader view of Article 101(3)
- (vi) Sustainability agreements
- (vii) The Commission’s approach in the Article 101(3) Guidelines
- (a) Cost efficiencies
- (b) Qualitative efficiencies
- (i) The efficiencies must be specific to the agreement
- (ii) The indispensability of individual restrictions
- (i) Cost efficiencies
- (ii) Qualitative efficiencies
- (iii) ‘In market’ and ‘out of market’ efficiencies
- (a) Individual benefits
- (b) Collective benefits
- (i) The relationship between Article 101(3) and Article 102
- (ii) Determining whether competition will be substantially eliminated
- (A) The Commission’s former monopoly over the grant of individual exemptions
- (B) Self-assessment
- (C) Application of Article 101(3) in practice
- (i) Article 9 commitments
- (ii) Article 10 declarations of inapplicability
- (iii) Informal guidance
- (iv) The non-prosecution of beneficial agreements
- (D) Notification and individual exemptions under domestic law
- (A) Role of block exemptions
- (B) Vires and block exemptions currently in force
- (i) Council Regulation 19/65
- (ii) Council Regulation 2821/71
- (iii) Council Regulation 1534/91
- (iv) Council Regulation 169/2009
- (v) Council Regulation 246/2009
- (vi) Council Regulation 487/2009
- (C) The format of block exemptions
- 1. Introduction
- 2. Undertakings
- 3. The Effect on Inter-State Trade
- 4. Dominant Position
- (A) Market definition
- (B) Measuring market power
- (C) Actual competitors
- (i) Statutory monopolies
- (ii) The relevance of market shares
- (a) The Court of Justice’s judgment in Hoffmann-La Roche
- (b) The AKZO presumption of dominance where an undertaking has a market share of 50 per cent or more
- (c) Findings of dominance below a market share of 50 per cent
- (D) Potential competitors
- (i) Legal barriers
- (ii) Economic advantages
- (iii) Switching costs and network effects
- (iv) Conduct
- (v) Performance
- (E) Countervailing buyer power
- (F) Previous findings of dominance
- (G) The degree of market power and super-dominance
- (H) Collective dominance
- (A) Preliminary comments
- (i) Article 102 applies to the unilateral behaviour of dominant firms
- (ii) Digital markets
- (iii) Pharmaceutical markets
- (iv) Utilities
- (B) The ‘special responsibility’ of dominant firms
- (C) There is no exhaustive list of abusive conduct
- (D) Hoffmann-La Roche v Commission
- (i) Objective concept
- (ii) Recourse to methods different from those which condition normal competition
- (iii) Exploitative and exclusionary abuses
- (E) Protecting the competitive structure of the market
- (F) ‘As-efficient competitors’
- (i) The ‘as-efficient competition principle’
- (ii) The ‘as-efficient competitor’ test
- (G) The journey from legal formalism to effects analysis
- (i) Hoffmann-La Roche v Commission
- (ii) Intel v Commission
- (iii) Unilever v AGCM
- (iv) Naked restrictions of competition
- (H) Effects analysis in practice
- (i) Actual harm
- (ii) Potential harm
- (iii) Standard of proof
- (iv) Potential harm that does not in fact occur
- (v) Counterfactual analysis
- (I) De minimis doctrine under Article 102?
- (J) Single and continuous abuse
- (K) Exploitative, exclusionary and single market abuses
- (A) Continental Can v Commission
- (B) Causation
- (C) The Commission’s Guidance on Article 102 Enforcement Priorities
- (D) Horizontal and vertical foreclosure
- (E) The dominant position, the abuse and the effects of the abuse may be in different markets
- (i) Michelin v Commission
- (ii) Commercial Solvents
- (iii) Télémarketing
- (iv) Sealink/B&I—Holyhead: Interim Measures
- (v) British Gypsum v Commission
- (vi) Tetra Pak II
- (F) Examples of exclusionary abuses
- (A) Objective justification
- (B) Efficiencies
- (C) Abuse of dominance and property rights
- (D) Burden and standard of proof
- (A) Public enforcement
- (B) Private enforcement
- 1. Introduction
- 2. Article 4(3) TEU—Duty of Sincere Cooperation
- (A) The relationship between Article 4(3) TEU and Articles 101 and 102 TFEU
- (B) The case-law predominantly concerns Article 4(3) TEU in conjunction with Article 101 TFEU
- (C) The case-law on Article 4(3) and the competition rules
- (i) The INNO doctrine
- (ii) Unsuccessful application of the INNO doctrine
- (iii) Successful application of the INNO doctrine
- (a) BNIC v Yves Aubert
- (b) Vlaamse Reisbureaus v Sociale Dienst
- (c) Ahmed Saeed
- (d) Consorzio Industrie Fiammiferi
- (e) Synthesis
- (iv) INNO doctrine applies only where there is an infringement of Article 101
- (D) Application of the case-law to lawyers’ fees
- 3. Article 106 TFEU—Compliance with the Treaties
- (A) Article 106(1)
- (i) Undertakings
- (ii) Public undertakings
- (iii) Undertakings with ‘special or exclusive rights’
- (a) Exclusive rights
- (b) Special rights
- (iv) ‘Measures’
- (v) The obligations on Member States under Article 106(1)
- (vi) The judgments of 1991
- (a) Höfner & Elser v Macrotron
- (b) ERT v Dimotiki
- (c) Merci Convenzionali Porto di Genova v Siderurgica Gabrielli
- (d) RTT v GB-Inno-BM
- (vii) The Corbeau judgment
- (viii) Making sense of the case-law on Article 102 in conjunction with Article 106(1)
- (a) Manifest inability to meet demand
- (b) Conflict of interest
- (c) Reservation of an ancillary activity
- (d) Corbeau
- (e) Discrimination
- (f) Excessive pricing
- (ix) NCAs’ application of Article 106(1) in conjunction with Articles 101 and/or 102
- (x) Remedies and direct effect
- (B) Article 106(2)
- (i) Services of general economic interest
- (ii) Undertakings having the character of a revenue-producing monopoly
- (iii) Scope of the exception: obstruction of the performance of the tasks assigned
- (a) Unsuccessful claims based on Article 106(2)
- (b) Successful claims based on Article 106(2)
- (iv) Adverse development of trade
- (v) Direct effect
- (C) Article 106(3)
- (i) Decisions
- (ii) Directives
- (iii) Judicial review of the Commission’s powers under Article 106(3)
- (A) Article 106(1)
- 1. Introduction
- 2. Overview of Regulation 1/2003
- (A) Overview of Regulation 1/2003
- (B) Supporting measures
- 3. The Commission’s Enforcement Powers under Regulation 1/2003
- (A) Burden and standard of proof
- (B) Chapter II: powers
- (i) Article 4: powers of the Commission
- (ii) Article 5: powers of the NCAs
- (iii) Article 6: powers of the national courts
- (C) Chapter III: Commission decisions
- (i) Article 7: finding and termination of an infringement
- (a) Behavioural remedies
- (b) Structural remedies
- (c) Past infringements
- (d) Complainants
- (ii) Article 8: interim measures
- (iii) Article 9: commitments
- (a) Article 9: substantive rules
- (b) Article 9: procedure
- (c) Article 9: effect of commitment decisions
- (d) Article 9: appeals
- (e) Comment
- (iv) Article 10: finding of inapplicability
- (v) Informal guidance
- (vi) Settlement of cartel cases
- (a) Introduction
- (b) Benefits of a system of settlements
- (c) Settlement procedure
- (d) Appealing settlement decisions
- (e) Hybrid settlements
- (f) Settlement procedure in practice
- (vii) Settlement of non-cartel cases
- (i) Article 7: finding and termination of an infringement
- (D) Chapter IV: cooperation
- (i) Article 11: cooperation between the Commission and the NCAs
- (ii) Article 12: exchange of information
- (a) Free movement of information
- (b) Restrictions on the use of information
- (c) The exchange of information with third countries
- (iii) Article 13: suspension or termination of proceedings
- (iv) Article 14: Advisory Committee
- (v) Article 15: cooperation with national courts
- (vi) Article 16: uniform application of EU competition law
- (E) Chapter V: powers of investigation
- (i) Article 17: investigations into sectors of the economy and into types of agreements
- (ii) Article 18: requests for information
- (a) The Commission’s powers
- (b) Privilege against self-incrimination
- (c) Legal professional privilege
- (iii) Article 19: power to take statements
- (iv) Article 20: the Commission’s powers of inspection
- (a) Voluntary investigations
- (b) Mandatory investigations
- (c) Penalties for obstructing inspections
- (d) The involvement of Member States
- (v) Article 21: inspection of other premises
- (vi) Article 22: investigations by NCAs
- (F) Chapter VI: penalties
- (i) Article 23: fines
- (ii) The Commission’s guidelines on the method of setting fines
- (a) Basic amount of the fine
- (b) Adjustments to the basic amount
- (iii) Ne bis in idem
- (iv) The Commission’s Leniency Notice
- (a) Section I: introduction
- (b) Section II: immunity from fines
- (c) Section III: reduction of fines
- (d) Section IV: corporate statements
- (e) Appeals by leniency applicants
- (v) Article 24: periodic penalty payments
- (G) Chapter VII: limitation periods
- (i) Article 25: limitation periods for the imposition of penalties
- (ii) Article 26: limitation period for the enforcement of penalties
- (H) Chapter VIII: hearings and professional secrecy
- (i) Article 27: hearing of the parties, complainants and others
- (a) The provisions of Article 27
- (b) The conduct of proceedings
- (c) European Ombudsman
- (d) A typical case
- (e) The position of complainants
- (ii) Article 28: professional secrecy
- (i) Article 27: hearing of the parties, complainants and others
- (I) Chapter IX: block exemption regulations
- (J) Chapter X: general provisions
- (i) Article 30: publication of decisions
- (ii) Article 31: review by the EU Courts
- (K) Chapter XI: transitional, amending and final provisions
- (i) Article 34: transitional provisions
- (ii) Article 35: designation of competition authorities of Member States
- (iii) Articles 36–42: miscellaneous amendments
- (iv) Article 43: repeal of Regulations 17 and 141
- (v) Article 44: Report on the functioning of Regulation 1/2003
- (A) The European Competition Network
- (B) Case allocation under Regulation 1/2003
- (C) ‘Soft’ convergence
- (D) Leniency
- (E) The ECN+ Directive
- (F) Twenty years of Regulation 1/2003
- (A) Article 265: failure to act
- (B) Article 263: action for annulment
- (i) Standing
- (ii) Acts
- (iii) Grounds of review
- (iv) Actions for damages
- (C) Article 261: penalties
- (D) Expedited procedure
- (E) Interim measures
- 1. Introduction
- 2. EU Law: Actions for Damages
- (A) Private enforcement prior to the Directive
- (B) The Damages Directive
- (i) A right to full compensation
- (ii) Quantum
- (iii) Passing on
- (iv) Disclosure of evidence
- (a) Article 5: disclosure of evidence
- (b) Article 6: disclosure of evidence in the file of a competition authority
- (c) Articles 7 and 8: limits on the use of evidence and penalties
- (v) Effect of national decisions, limitation periods and joint and several liability
- (a) Article 9: effect of national decisions
- (b) Article 10: limitation rules
- (c) Article 11: joint and several liability
- (C) The relationship between the Commission and domestic courts
- (i) Article 6: powers of the national courts
- (ii) Article 15: cooperation with national courts
- (a) Requests by national courts for information or an opinion
- (b) Submission of judgments to the Commission
- (c) Observations by national competition authorities and the Commission
- (d) Wider national powers
- (iii) Article 16: uniform application of EU competition law
- (a) The effect of Commission decisions
- (b) Parallel proceedings
- (i) The Brussels Regulation
- (a) Anchor defendants
- (b) Article 29: lis pendens and the ‘Italian torpedo’
- (ii) Rome II
- (A) The availability of damages in the UK court
- (B) Implementation of the Damages Directive in the UK
- (C) Brexit
- (D) The cause of action
- (E) Burden and standard of proof
- (F) Disclosure
- (G) Damages claims may be brought in the High Court or the Competition Appeal Tribunal
- (i) High Court proceedings
- (ii) CAT proceedings
- (a) Individual claims
- (b) Collective claims
- (c) The CAT’s rules
- (iii) Which forum to choose?
- (H) Decisions of competition authorities
- (i) Section 58A Competition Act
- (ii) Decisions of NCAs prior to 1 January 2021
- (iii) Section 58: findings of fact by the CMA
- (I) Contribution
- (J) Collective redress in the UK
- (i) High Court: group litigation orders and representative actions
- (ii) CAT: collective proceedings
- (a) Collective proceedings orders
- (b) Mastercard Inc v Merricks
- (c) Authorisation of the class representative
- (d) Eligibility of the claims for inclusion in collective proceedings
- (e) The ‘gatekeeper’ role of the CAT
- (f) Opt-in and opt-out collective proceedings
- (g) Damages in collective proceedings
- (i) Award of damages
- (ii) Aggregate damages
- (h) Settlements and redress schemes
- (i) Does the court have jurisdiction over a foreign defendant?
- (ii) Should the court exercise jurisdiction over a foreign defendant?
- (i) Interim relief
- (ii) Damages
- (iii) Passing on
- (iv) Declarations and other relief
- (v) Unsuccessful claims
- (A) Article 101(2)
- (i) The sanction of voidness
- (ii) Eco Swiss China Time Ltd v Benetton
- (B) The classic ‘Euro-defence’
- (C) Severance
- (D) Void or illegal?
- (E) Transient voidness
- (F) Article 102
- (G) Third party as defendant
- (A) Eco Swiss China Time Ltd v Benetton International BV
- (B) Arbitration clauses
- (C) Arbitrators and Article 267 TFEU
- 1. Introduction
- 2. The Competition Act 1998—Overview
- (A) Outline of the Act
- (i) Part I: the Chapter I and Chapter II prohibitions
- (ii) Part II: European investigations
- (iii) Part III: amendments to the Fair Trading Act 1973
- (iv) Part IV: miscellaneous amendments
- (B) CMA guidelines
- (C) Other information about the Competition Act
- (D) Delegated legislation under the Competition Act
- (E) Literature
- (F) Brexit
- (A) Outline of the Act
- 3. The Chapter I Prohibition
- (A) Section 2(1): the Chapter I prohibition
- (i) ‘Subject to section 3’
- (ii) Agreements between undertakings, decisions by associations of undertakings or concerted practices
- (iii) ‘Undertakings’
- (a) Basic definition
- (b) Need to adopt a functional approach
- (c) Economic activity
- (d) Non-economic activity
- (e) Undertaking as a single economic entity
- (f) Undertakings, not persons
- (iv) ‘Agreements’
- (v) ‘Decisions by associations of undertakings’
- (vi) ‘Concerted practices’
- (a) Basic definition
- (b) Direct contact between competitors
- (c) Indirect contact between competitors
- (vii) ‘Agreement and/or concerted practice’
- (viii) ‘Single and continuous infringement’
- (a) Conditions for finding a single and continuous infringement
- (b) Single and repeated infringement
- (c) Decisions where there was no SCI
- (ix) ‘Object or effect the prevention, restriction or distortion of competition within the UK’
- (x) Restriction of competition by object
- (a) General approach
- (b) Findings of anti-competitive object
- (c) No anti-competitive object
- (d) Object restrictions can be defended under section 9(1)
- (xi) Restriction of competition by effect
- (a) General approach
- (b) Findings of anti-competitive effects
- (c) Findings of no proven effects
- (d) Objective necessity
- (xii) Appreciability
- (xiii) Applicable law and territorial scope
- (B) Section 2(2): illustrative list
- (C) Section 2(3): extraterritorial application
- (D) Section 2(4): voidness
- (i) Severance
- (ii) Void or illegal?
- (iii) Transient voidness
- (E) Sections 2(5) and 2(6): interpretation
- (F) Section 2(7): the UK
- (G) Section 2(8): the ‘Chapter I prohibition’
- (H) The Chapter I prohibition: excluded agreements
- (i) Schedule 1: mergers and concentrations
- (a) Relationship of the Chapter I and Chapter II prohibitions with UK merger control
- (b) Newspaper mergers
- (c) Clawback
- (d) Protected agreements
- (e) Relationship of the Chapter I and Chapter II prohibitions with EU merger control
- (ii) Schedule 2: competition scrutiny under other enactments
- (a) Communications Act 2003
- (b) Financial Services and Markets Act 2000
- (c) Legal Services Act 2007
- (iii) Schedule 3: general exclusions
- (a) Planning obligations
- (b) Section 21(2) Restrictive Trade Practices Act 1976
- (c) EEA regulated markets
- (d) Services of general economic interest
- (e) Compliance with legal requirements
- (f) Avoidance of conflict with international obligations
- (g) Public policy
- (h) Coal and steel
- (i) Agricultural products
- (iv) Professional rules
- (v) Section 50: vertical agreements
- (vi) Section 50: land agreements
- (i) Schedule 1: mergers and concentrations
- (I) The Chapter I prohibition: exemptions
- (i) Introduction
- (ii) Exemption criteria
- (a) Burden of proof
- (b) Standard of proof
- (c) Scope of section 9(1)
- (d) The application of section 9(1) to restrictions by object
- (e) The application of section 9(1) to restrictions by effect
- (iii) Block exemptions
- (iv) Parallel exemptions
- (v) Retained exemptions
- (A) Section 2(1): the Chapter I prohibition
- (A) The prohibition
- (i) Section 18
- (ii) ‘The Chapter II prohibition’
- (iii) ‘Undertakings’
- (iv) Affecting trade within the UK
- (v) Voidness
- (vi) Market size
- (vii) The relevant market
- (viii) Assessing dominance
- (a) Market shares
- (b) Entry barriers
- (c) Other factors in the assessment of market power
- (d) The ‘special responsibility’ of dominant firms
- (e) Super-dominance
- (ix) Abuse
- (a) Abuse is an objective concept
- (b) Protecting consumers and the competitive process
- (c) There is no exhaustive list of abusive conduct
- (d) Conduct that departs from ‘normal competition’
- (e) Conduct that has or is likely to have exclusionary effects
- (f) The ‘as-efficient competitor test’
- (g) Exploitative conduct
- (h) Objective justification
- (i) Efficiencies
- (j) Conduct of minor significance
- (i) Exclusions for mergers subject to UK merger control
- (ii) Financial Services and Markets Act 2000
- (iii) Other exclusions
- (A) Scope of section 60A
- (i) ‘Persons’ subject to section 60A
- (ii) ‘Questions arising … in relation to competition’
- (B) Duty under section 60A(2)
- (i) ‘So far as is compatible’ with Part 1 of the Act
- (ii) Duty of consistency
- (iii) ‘Any corresponding question’
- (C) Exceptions to the duty of consistency
- (D) Having regard to decisions or statements of the Commission
- (A) Infringement decisions of the OFT and CMA
- (B) Decisions of sectoral regulators
- (C) Appeals against infringement decisions
- (D) Findings of infringement by the CAT
- (E) Appeals against non-infringement and case-closure decisions
- 1. Introduction
- 2. Investigations
- (A) Opening a formal investigation
- (B) Power to require documents and information
- (i) Section 26 notices
- (ii) Section 26 responses
- (C) Power to ask questions
- (i) Voluntary interviews
- (ii) Compulsory interviews
- (D) Power to enter premises without a warrant
- (i) Requirements for a section 27 inspection
- (ii) Powers during a section 27 inspection
- (iii) Procedure during a section 27 inspection
- (E) Power to enter business premises with a warrant
- (i) Requirements for a section 28 inspection
- (ii) Powers during a section 28 inspection
- (iii) Procedure during a section 28 inspection
- (iv) Disputing a section 28 warrant
- (F) Power to enter domestic premises with a warrant
- (i) Requirements for a section 28A inspection
- (ii) Powers during a section 28A inspection
- (iii) Procedure during a section 28A inspection
- (G) Powers of surveillance
- (H) Access to lawyers
- (I) Limitation on the use of the powers of investigation
- (i) Legal professional privilege
- (ii) Self-incrimination
- (iii) Confidentiality
- (iv) Human Rights Act 1998
- (v) Police and Criminal Evidence Act 1984 (‘PACE’)
- (vi) Procedural fairness and good administration
- (J) Sanctions
- (i) Penalties: applicable to persons
- (ii) Penalties: failure to comply with requirements
- (iii) Offences
- (K) Brexit
- 3. Complaints
- 4. Opinions, Informal Advice and Warning Letters
- (A) Opinions
- (B) Informal advice
- (C) Warning and advisory letters
- 5. Enforcement
- (A) Procedure
- (i) Statement of objections
- (ii) Procedural Officer
- (iii) Case Decision Group
- (B) Commitments
- (i) The CMA’s approach
- (ii) Procedure
- (iii) Consequences of accepting commitments
- (iv) Consequences of non-compliance
- (v) The commitment provisions in practice
- (vi) Variation, substitution or release of commitments
- (vii) Appeals
- (C) Interim measures
- (D) Directions
- (i) Power to impose directions
- (ii) Can directions be structural?
- (iii) Persons who may be the subject of directions
- (iv) The directions provisions in practice
- (v) Enforcement of compliance with directions
- (E) Penalties
- (i) Intention or negligence
- (ii) Limitation
- (iii) Determining the level of the fine
- (iv) The Guidance as to the appropriate amount of a penalty
- (v) The CMA’s six-step approach
- (a) Step 1 – starting point
- (b) Step 2 – adjustment for duration
- (c) Step 3 – adjustment for aggravating and mitigating factors
- (d) Step 4 – adjustment for specific deterrence
- (e) Step 5 – adjustment for proportionality and statutory cap
- (f) Step 6 – leniency, settlement and voluntary redress
- (vi) Payment of penalties
- (vii) Immunity for small agreements
- (viii) Immunity for conduct of minor significance
- (F) Leniency
- (i) Terminology
- (ii) Key features of the UK leniency system
- (iii) Eligibility for leniency
- (a) Type A immunity
- (b) Type B immunity/leniency
- (c) Type C leniency
- (d) The coercer test
- (iv) Actions before applying for leniency
- (v) Checking the availability of leniency and initial application
- (vi) Cooperation throughout investigation
- (vii) Leniency and no-action agreements
- (viii) Disclosure and information
- (ix) Other issues relating to criminal proceedings
- (x) Other procedural issues: leniency plus/penalties
- (xi) Bad faith/withdrawal of leniency/revocation of no-action letters
- (G) Settlements
- (H) The penalty provisions in practice
- (i) Statistical analysis
- (ii) Appeals against decisions imposing penalties
- (iii) Infringement decisions in which no penalty was imposed
- (A) Procedure
- (A) The cartel offence
- (i) Definition of the cartel offence
- (ii) Prosecution guidance
- (a) Evidential stage
- (b) Public interest stage
- (iii) Circumstances in which the cartel offence is not committed
- (iv) Defences
- (v) Powers of investigation and search
- (a) Powers to require information and documents
- (b) Power to enter premises under a warrant
- (vi) Powers of surveillance
- (a) Intrusive surveillance
- (b) Property interference
- (c) Directed surveillance
- (d) Covert human intelligence sources
- (e) Access to communications data
- (vii) Parallel CMA criminal and civil investigations
- (viii) Prosecutions
- (ix) Sanctions
- (x) No-action letters
- (xi) Extradition
- (xii) The cartel offence in practice
- (B) Conspiracy to defraud at common law
- (A) Grounds for disqualification
- (i) The first condition: infringement of competition law
- (ii) The second condition: infringement of competition law
- (B) Length and effects of disqualification
- (C) Competition disqualification undertakings
- (D) Procedure
- (E) Leniency
- (F) Company director disqualification in practice
- (A) The Duty of Primacy
- (B) The Concurrency Regulations and the Concurrency Guidance
- (C) UK Competition Network
- (D) The concurrency arrangements in practice
- (E) Annual concurrency reports
- (F) Power to remove concurrent powers
- (G) Review
- (A) What can be appealed
- (B) Who may appeal
- (C) Appeals on the merits
- (D) Procedure before the CAT
- (i) The CAT Rules and Guide to proceedings
- (ii) Rule 4: the governing principles
- (iii) Practice Directions
- (iv) Pleadings
- (v) Evidence
- (vi) Withdrawing an appeal
- (E) The powers of the CAT
- (F) Costs
- (G) CAT appeals in practice
- (H) Appeals from the CAT
- 1. Introduction
- 2. Gathering Information about Markets
- 3. Super-Complaints
- (A) Purpose of super-complaints
- (B) Super-complainants
- (C) Guidance
- (D) Procedure
- (E) Outcomes of super-complaints
- 4. Market Studies
- (A) Guidance
- (B) Purpose of market studies
- (C) Procedure
- (i) Identifying markets to study
- (ii) Market study notice
- (iii) Stages of a market study
- (iv) Market study report
- (D) Outcomes of market studies
- (E) Examples of recent market studies
- 5. Market Investigations
- (A) Overview of the system of market investigations
- (B) Guidelines and other relevant publications
- (C) The making of references
- (i) Power to make ordinary references
- (ii) Power to make cross-market references
- (iii) Ministerial power to make references
- (iv) The discretion of the CMA whether to make a reference
- (a) Relationship between the Competition Act and market investigations
- (b) Scale of the problem
- (c) Availability of remedies
- (v) Consultation before making a reference
- (vi) Content and variation of references
- (vii) Restrictions on the ability to make a reference
- (D) The determination of references
- (i) The CMA Panel and market reference groups
- (ii) Questions to be decided
- (a) Ordinary references
- (b) Cross-market references
- (iii) Procedure
- (iv) Investigations and reports
- (v) Duty to remedy adverse effects
- (vi) Implementation trials
- (vii) Time-limits for remedial action
- (A) Issuing intervention notices
- (B) Restricted public interest references
- (C) Full public interest references
- (A) Undertakings and orders
- (i) Undertakings in lieu
- (a) Undertakings in lieu of a reference
- (b) Undertakings in lieu of a report
- (c) Undertakings in lieu: procedural requirements
- (d) Effect of undertakings in lieu
- (e) Undertakings in lieu in practice
- (ii) Interim undertakings and orders
- (iii) Final powers
- (i) Undertakings in lieu
- (B) Review of enforcement undertakings and orders
- (C) Duty to comply with enforcement undertakings and orders
- (A) Regulated markets
- (B) Consultation, information and publicity
- (C) Powers of investigation and penalties
- (D) Reports
- (E) Review of decisions under Part 4 of the Enterprise Act
- (A) Meaning of ‘adverse effect on competition’
- (i) Market definition
- (ii) Counterfactual
- (iii) Theories of harm
- (iv) Performance and prices
- (B) Findings of adverse effects on competition
- (C) Remedies
- (D) Evaluation of the system
- 1. Introduction
- 2. International Competition Law Institutions
- (A) ICN
- (B) OECD
- (C) UNCTAD
- 3. Extraterritoriality: Theory
- (A) Subject-matter jurisdiction
- (B) Enforcement jurisdiction
- 4. The Extraterritorial Application of US Antitrust Law
- (A) The Alcoa, Hartford Fire Insurance and Empagran cases
- (B) Comity
- 5. The Extraterritorial Application of EU Competition Law
- (A) Articles 101 and 102: subject-matter jurisdiction
- (i) The single economic entity doctrine
- (ii) The implementation doctrine
- (iii) The qualified effects doctrine
- (B) Articles 101 and 102: enforcement jurisdiction
- (i) Initiating proceedings
- (ii) Information and investigations
- (iii) Final decisions
- (C) EU Merger Regulation
- (i) The jurisdictional criteria in the EUMR
- (ii) Gencor v Commission
- (D) The EU’s dedicated cooperation agreements on competition enforcement
- (i) The EU/US Cooperation Agreement of 23 September 1991
- (ii) The Positive Comity Agreement of 4 June 1998
- (iii) The cooperation agreements in practice
- (iv) Memoranda of Understanding on Cooperation
- (A) Articles 101 and 102: subject-matter jurisdiction
- (A) Competition Act 1998
- (i) Chapter I prohibition
- (a) Agreements made before the DMCCA159
- (b) Agreements made after the DMCCA
- (ii) Chapter II prohibition
- (c) Enforcement of the Competition Act
- (i) Chapter I prohibition
- (i) Market studies and market investigations
- (ii) Mergers
- (iii) The cartel offence
- (c) Digital Markets
- 1. Introduction
- 2. Widespread Consensus that Cartels Should be Prohibited
- (A) The global agenda
- (B) The OECD and the fight against cartels
- (C) The ICN and the fight against cartels
- (D) Recent action against cartels around the world
- 3. EU Law and Policy Towards Cartels
- (A) Statistics
- (B) Concealment of cartels
- (C) Proof of participation in a cartel
- (D) Facilitators
- (E) Public distancing from a cartel
- (F) Recent decisions against cartels
- (G) Appeals
- 4. Horizontal Price Fixing
- (A) Article 101(1)
- (i) Price fixing in any form is caught
- (ii) Price fixing in any context is caught
- (iii) Price fixing: irrelevant considerations
- (iv) Price signalling
- (v) Hub-and-spoke conspiracies
- (vi) Algorithmic collusion
- (vii) Blockchains
- (viii) Horizontal price fixing in conjunction with other infringements of Article 101(1)
- (ix) Buyer cartels
- (x) Joint selling agencies
- (B) Article 101(3)
- (A) Article 101(1)
- 5. Horizontal Market Sharing
- (A) Article 101(1)
- (i) Market sharing in any form is caught
- (ii) Market sharing in any context is caught
- (iii) Market sharing in conjunction with other infringements of Article 101(1)
- (B) Article 101(3)
- (A) Article 101(1)
- 6. Quotas and Other Restrictions on Production
- (A) Article 101(1)
- (B) Article 101(3)
- 7. Collusive Tendering
- (A) Article 101(1)
- (i) Collusive tendering takes many forms
- (ii) Collusive tendering has an anti-competitive object
- (iii) Bidding consortia
- (C) Article 101(3)
- (A) Article 101(1)
- 8. Agreements Relating to Terms and Conditions
- (A) Article 101(1)
- (B) Article 101(3)
- 9. Exchanges of Information
- (A) Introduction
- (i) Benefits of information exchanges
- (ii) Detriments of information exchanges
- (iii) Distinguishing pro- and anti-competitive exchanges of information
- (B) Agreement and/or concerted practice to exchange information
- (C) Types of information exchange
- (i) Information exchange in support of a cartel
- (ii) Information exchange related to a horizontal cooperation agreement
- (iii) Information exchange related to a vertical agreement
- (iv) Information exchange during an acquisition process
- (v) Information exchange related to a regulatory initiative
- (vi) Information exchange related to sustainability agreements
- (D) Main competition concerns
- (i) Collusive outcome
- (ii) Anti-competitive foreclosure
- (E) Nature of information exchanged
- (i) Commercially sensitive information
- (ii) Aggregated or individualised information
- (iii) Age of the information
- (F) The characteristics of the exchange of commercially sensitive information
- (i) Unilateral disclosures
- (ii) Indirect information exchanges
- (iii) Frequency of the information exchange
- (iv) Market characteristics
- (G) Restrictions of competition by object
- (H) Restriction of competition by effect
- (I) Article 101(3)
- (J) Compliance
- (A) Introduction
- 10. Advertising Restrictions
- (A) Article 101(1)
- (B) Article 101(3)
- 11. Anti-Competitive Horizontal Restraints
- (A) Collective exclusive dealing
- (B) Other exclusionary practices
- (C) Collusion on technical development
- (D) No poach agreements
- 12. UK Law
- (A) Enforcement action against cartels
- (B) Horizontal price fixing
- (C) Agreements relating to terms and conditions
- (D) Horizontal market sharing
- (E) Quotas and other restriction on production
- (F) Collusive tendering
- (G) Exchanges of information
- (H) Advertising restrictions
- (I) Anti-competitive horizontal restraints
- 1. Introduction
- 2. The Theory of Oligopolistic Interdependence
- (A) Outline of the theory
- (i) The meaning of oligopoly and a warning about the term
- (ii) The oligopoly problem
- (iii) Terminology: ‘tacit collusion’; ‘conscious parallelism’; ‘tacit coordination’; ‘coordinated effects’
- (iv) ‘Non-collusive oligopoly’
- (v) The conditions for tacit coordination
- (B) Criticisms of the theory
- (i) How interdependent are oligopolists?
- (ii) Does the theory of oligopolistic interdependence reflect markets in the real world?
- (iii) Why are some oligopolistic markets competitive?
- (iv) How do oligopolists achieve a supra-competitive price?
- (v) Why is a market oligopolistic in the first place?
- (vi) What does empirical evidence about oligopolies show?
- (A) Outline of the theory
- (A) A structural approach
- (B) A behavioural approach
- (C) A regulatory approach
- (D) A market investigation approach
- (A) Does parallel behaviour amount to a concerted practice under Article 101?
- (i) Dyestuffs
- (ii) Further cases prior to Wood Pulp
- (iii) Wood Pulp
- (iv) Cases following Wood Pulp
- (v) Comment
- (B) Article 101(1), the exchange of information and other facilitating practices
- (C) Price signalling
- (D) Algorithmic coordination
- (E) Article 101(3)
- (A) The linguistic background
- (B) The definition of collective dominance under Article 102
- (C) Abuse of collective dominance under Article 102
- (i) Exploitative abuse of a collective dominant position
- (ii) Exclusionary abuse of a collective dominant position
- (iii) Individual abuse of a collective dominant position
- (A) Competition Act 1998
- (B) Market studies and market investigations under the Enterprise Act 2002
- (i) Market studies
- (ii) Market investigations
- 1. Introduction
- 2. Full-Function Joint Ventures
- 3. The Application of Article 101 to Horizontal Cooperation Agreements and the Commission’s Horizontal Cooperation Guidelines
- (A) Introduction
- (B) Case-law, decisions and informal guidance on horizontal cooperation agreements
- (C) The analytical framework in the Horizontal Cooperation Guidelines
- (i) Purpose of the Guidelines
- (ii) Scope of the Guidelines
- (a) The Guidelines apply to agreements between actual and potential competitors
- (b) Relationship with other guidance and legislation
- (c) The ‘centre of gravity’ of an agreement
- (d) The Guidelines apply to goods, services and technologies
- (iii) Analytical framework under Article 101
- (a) Assessment under Article 101(1)
- (b) Assessment under Article 101(3)
- (c) Agreements that generally fall outside Article 101(1)
- (A) The block exemption for R&D agreements: Regulation 2023/1066
- (i) Article 1: definitions
- (ii) Article 2: exemption
- (iii) Article 3: access to the final results
- (iv) Article 4: access to pre-existing know-how
- (v) Article 5: joint exploitation
- (vi) Article 6: market share thresholds and duration of exemption
- (a) R&D agreements that are subject to a market share threshold
- (b) Calculation of market shares
- (c) R&D agreements that are not subject to a market share threshold
- (d) Duration
- (vii) Article 7: application of the market share thresholds
- (viii) Article 8: hardcore restrictions
- (ix) Article 9: excluded restrictions
- (x) Articles 10 and 11: withdrawal of the block exemption
- (xi) Article 12: transitional period
- (xii) Article 13: entry into force and application
- (B) The application of Article 101(1) to R&D agreements
- (i) Relevant markets
- (a) Existing product markets
- (b) Technology markets
- (c) Early innovation efforts
- (ii) Main competition concerns
- (iii) R&D agreements that generally do not restrict competition
- (iv) Restrictions of competition by object
- (v) Restrictions of competition by effects
- (a) Market power
- (b) R&D relating to existing products or technologies
- (c) New products and early innovation efforts
- (d) Exchanges of information
- (i) Relevant markets
- (A) Relevant markets
- (B) The block exemption for specialisation agreements: Regulation 2023/1067
- (i) Article 1: definitions
- (ii) Article 2: exemption
- (iii) Article 3: the market share threshold
- (iv) Article 4: application of the market share threshold
- (v) Article 5: hardcore restrictions
- (vi) Articles 6 and 7: withdrawal of the block exemption
- (vii) Article 8: transitional period
- (viii) Article 9: entry into force and application
- (C) The assessment of production agreements under Article 101(1)
- (i) Main competition concerns
- (ii) Restrictions of competition by object
- (iii) Restrictions by effect
- (a) Production agreements that are unlikely to lead to restrictive effects
- (b) Market power
- (c) Direct limitation of competition between the parties
- (d) Collusive outcome and anti-competitive foreclosure
- (A) Application of Article 101(1) to joint purchasing agreements
- (i) Main competition concerns
- (ii) Restrictions of competition by object
- (a) Buyer cartels
- (b) Joint purchasing arrangements
- (c) No poach agreements
- (iii) Restrictions of competition by effect
- (a) Relevant markets
- (b) Market power
- (c) Collusive outcome
- (A) The application of Article 101(1) to commercialisation agreements
- (i) Main competition concerns
- (ii) Commercialisation agreements that generally do not raise competition concerns
- (iii) Restrictions of competition by object
- (iv) Restrictions by effect
- (B) The application of Article 101(3) to commercialisation agreements
- (C) Bidding consortia
- (A) Relevant markets
- (B) The application of Article 101(1) to standardisation agreements
- (i) Main competition concerns
- (ii) Restrictions of competition by object
- (iii) A (fairly) safe harbour
- (iv) Restrictions of competition by effect
- (C) The application of Article 101(3) to standardisation agreements
- (A) Relevant markets
- (B) The application of Article 101(1) to standard terms
- (i) Main competition concerns
- (ii) Restriction of competition by object
- (iii) Restriction of competition by effect
- (C) The application of Article 101(3) to standard terms
- (A) Sustainable development and competition policy
- (i) Sustainable development
- (ii) Competition may promote sustainability goals
- (iii) Cooperation may promote sustainability goals
- (iv) Sustainability agreements
- (B) Sustainability agreements that are unlikely to raise competition concerns
- (C) The assessment of sustainability agreements under Article 101(1)
- (i) General principles and enforcement
- (ii) Sustainability standardisation agreements
- (a) Definition and characteristics
- (b) Main competition concerns
- (c) Restrictions of competition by object
- (d) Restrictions of competition by effect
- (A) Restructuring agreements
- (B) Banking sector
- (C) Transport
- (D) Coronavirus crisis
- (A) The Guidance on Horizontal Agreements
- (B) The Guidance on Green Agreements
- (C) Block exemption for research and development agreements
- (D) Block exemption for specialisation agreements
- (E) Block exemption for ticketing agreements
- (F) The Chapter I prohibition in practice
- 1. Introduction
- 2. Distribution Chains in the Modern Economy
- 3. Vertical Integration
- (A) Non-application of Article 101 to agreements within a single economic entity
- (B) Application of Article 102 to firms within a single economic entity
- (C) Application of the EU Merger Regulation to vertical mergers
- 4. Agency Agreements
- (A) When do agency agreements fall outside Article 101(1)?
- (i) The criterion of risk
- (ii) Types of risk
- (iii) Restrictions falling outside Article 101(1)
- (B) When could an agency agreement infringe Article 101(1)?
- (i) Exclusivity and single branding provisions
- (ii) Facilitating collusion
- (iii) Misuse of an agency relationship
- (C) Agents and the online platform economy
- (D) Sub-contracting agreements
- (A) When do agency agreements fall outside Article 101(1)?
- 5. Vertical Agreements: Competition Policy Considerations
- (A) Introduction
- (B) Inter-brand and intra-brand competition
- (C) The single market imperative
- (D) The positive effects of vertical restraints
- (i) The ‘vertical externality issue’
- (ii) The ‘free-rider problem’
- (iii) Opening up and entering new markets
- (iv) The certification free-rider issue
- (v) The hold-up problem
- (vi) The hold-up problem where know-how is transferred
- (vii) Economies of scale in distribution
- (viii) Uniformity and quality standardisation
- (xi) Capital market imperfections
- (E) The negative effects of vertical restraints
- 6. Vertical Agreements: Article 101(1)
- (A) Introduction
- (B) The case-law on vertical agreements
- (C) The combined effect of the De Minimis Notice and the block exemption
- (D) The framework of analysis of vertical agreements in the Vertical Guidelines
- (i) The four steps involved in assessing vertical agreements under Article 101
- (ii) Relevant factors for the assessment under Article 101(1)
- (iii) Relevant factors for the assessment under Article 101(3)
- (iv) Analysis of particular types of vertical agreements and restraints
- (E) Export bans
- (i) Direct export bans
- (ii) Indirect export bans
- (iii) Export bans falling outside Article 101(1) or satisfying Article 101(3)
- (F) Exclusive distribution
- (i) What is exclusive distribution?
- (ii) How might exclusive distribution affect competition?
- (iii) When might exclusive distribution agreements infringe Article 101(1)?
- (iv) When does exclusive distribution benefit from the block exemption?
- (v) When could an exclusive distribution agreement satisfy Article 101(3)?
- (G) Selective distribution
- (i) What is selective distribution?
- (ii) How does selective distribution affect competition?
- (iii) When does selective distribution fall outside Article 101(1)?
- (iv) When might selective distribution infringe Article 101(1)?
- (v) When do selective distribution systems benefit from the block exemption?
- (vi) When could selective distribution benefit from Article 101(3)?
- (H) Franchising
- (i) When do restrictions in a franchise agreement fall outside Article 101(1)?
- (ii) When might a franchise agreement infringe Article 101(1)?
- (iii) When could a franchise agreement benefit from the block exemption?
- (iv) When might franchising benefit from Article 101(3)?
- (I) Pricing restrictions
- (i) What is resale price maintenance?
- (ii) When does resale price maintenance infringe Article 101(1)?
- (iii) When do recommended and maximum prices infringe Article 101(1)?
- (iv) Does the block exemption apply to minimum, fixed, recommended or maximum resale prices?
- (v) When does resale price maintenance benefit from Article 101(3)?
- (vi) When do recommended and maximum prices benefit from Article 101(3)?
- (J) Single branding
- (i) What is single branding?
- (ii) How might single branding affect competition?
- (iii) When might single branding infringe Article 101(1)?
- (iv) When does single branding benefit from the block exemption?
- (v) When could a single branding agreement satisfy Article 101(3)?
- (K) Restrictions on the use of online marketplaces
- (L) Restrictions on the use of price comparison services
- (M) Parity obligations
- (i) What are parity obligations?
- (ii) How might parity obligations affect competition?
- (iii) When might across-platform retail parity obligations infringe Article 101(1)?
- (iv) When might narrow retail parity obligations infringe Article 101(1)?
- (v) When does the block exemption apply to parity obligations?
- (vi) When could parity obligations benefit from Article 101(3)?
- (N) Other types of vertical restraints
- 7. Vertical Agreements: Regulation 2022/720
- (A) Article 1: definitions
- (B) Article 2: scope of the block exemption
- (i) Article 2(1): block exemption for vertical agreements
- (ii) Many vertical agreements do not infringe Article 101(1)
- (iii) If it is not forbidden, it is permitted
- (iv) The definition of a vertical agreement
- (v) ‘Operate at different levels of production or distribution chain’
- (vi) ‘For the purposes of the agreement’
- (vii) ‘Relating to the conditions under which the parties may purchase, sell or resell certain goods or services’
- (viii) Vertical agreements in the online platform economy
- (ix) Interconnection agreements
- (x) Agency
- (xi) Article 2(2): associations of retailers
- (xii) Article 2(3): ancillary provisions in relation to intellectual property rights
- (a) Article 2(3) is applicable only where there is a vertical agreement
- (b) The IPR provisions must be for the use of the buyer
- (c) The IPR provisions must not be the primary object of the agreement
- (d) The IPR provisions must be directly related to the use, sale or resale of goods or services by the buyer or its customers
- (e) The IPR provisions must not have an illegitimate object
- (xiii) Article 2(4): agreements between competing undertakings
- (xiv) Article 2(5): information exchange within dual distribution
- (xv) Article 2(6): hybrid online intermediation services
- (xvi) Article 2(7): agreements within the scope of another block exemption
- (C) Article 3: the market share cap
- (i) The relevant market shares
- (a) Supplier’s market share
- (b) Buyer’s market share
- (c) Multipartite agreements
- (ii) Exceeding the market share cap
- (i) The relevant market shares
- (D) Article 4: hardcore restrictions
- (i) Hardcore restrictions are generally object restrictions
- (ii) Some hardcore restrictions fall outside Article 101(1)
- (iii) Some hardcore restrictions may satisfy Article 101(3)
- (iv) Article 4(a): resale price maintenance
- (a) Direct and indirect means of resale price maintenance
- (b) Maximum and recommended resale prices
- (c) Agency agreements
- (d) Fulfilment contracts
- (iv) Article 4(b): exclusive distribution systems
- (a) Article 4(b): the hardcore restriction
- (b) Article 4(b): exceptions
- (v) Article 4(c): selective distribution systems
- (a) Article 4(c): the hardcore restrictions
- (b) Article 4(c)(i): exceptions
- (vi) Article 4(d): free distribution systems
- (a) Article 4(d): the hardcore restriction
- (b) Article 4(d): the exceptions
- (vii) Article 4(e): internet restrictions
- (viii) Article 4(f): restrictions on the supplier’s ability to supply components to third parties
- (E) Article 5: excluded restrictions
- (i) Article 5(1)(a): non-compete obligations
- (ii) Article 5(1)(b): post-term non-compete obligations
- (iii) Article 5(1)(c): competing products in a selective distribution system
- (iv) Article 5(1)(d): across-platform retail parity obligations
- (F) Withdrawal of the block exemption by the Commission or by a Member State
- (i) Withdrawal by the Commission
- (ii) Withdrawal by a Member State
- (G) Article 7: disapplication of the block exemption by Commission Regulation
- (H) Articles 8 and 9: market share and turnover
- (I) Articles 10 and 11: transitional provisions and entry into force
- 8. Vertical Agreements: Individual Application of Article 101(3)
- 9. Regulation 461/2010 on Motor Vehicle Distribution
- 10. UK Law
- (A) Competition Act 1998
- (i) Background to the VABEO
- (ii) The VABEO
- (iii) The VABEO Guidance
- (iv) The Competition Act 1998 in practice
- (B) Enterprise Act 2002
- (A) Competition Act 1998
- 1. Introduction
- 2. Exclusive Dealing Agreements
- (A) Competition policy considerations
- (B) EU law
- (i) The application of Article 102 to exclusive purchasing agreements
- (a) Meaning of exclusivity
- (b) The Judgment of the Court of Justice in Hoffmann-La Roche v Commission
- (c) The Judgment of the Court of Justice in Unilever Italia
- (d) The Commission’s approach to exclusive purchasing agreements
- (e) The Commission’s approach to exclusive supply agreements
- (ii) Article 102 applies to de facto as well as to contractual exclusivity
- (iii) Is there an objective justification for a long-term supply agreement?
- (i) The application of Article 102 to exclusive purchasing agreements
- (B) UK law
- (i) The UK courts’ approach to exclusive purchasing agreements
- (ii) The UK competition authorities’ approach to exclusive purchasing agreements
- (A) Terminology and illustrations of tying
- (B) Policy considerations: arguments for and against tying
- (C) EU law
- (i) Does the accused undertaking have a dominant position?
- (ii) Has the dominant undertaking tied two distinct products?
- (a) Hilti
- (b) Tetra Pak
- (c) Microsoft
- (d) Google Android
- (iii) Was the customer coerced to purchase both the tying and the tied products?
- (iv) Is the tie capable of having an anti-competitive foreclosure effect?
- (v) Is there an objective justification for the tie?
- (D) UK law
- (i) Judgments of the UK courts
- (ii) The approach of the UK competition authorities
- (A) Preliminary comments
- (i) The right to choose one’s trading partners
- (ii) Incentives to invest and free-riding
- (iii) Horizontal and vertical foreclosure
- (iv) Possible justifications
- (B) EU law
- (i) Vertical foreclosure: competitive harm in a downstream market
- (a) Is there a refusal to supply?
- (b) Does the accused undertaking have a dominant position in an upstream market?
- (c) Is the product to which access is sought indispensable to someone wishing to compete in the downstream market?
- (d) Would a refusal to grant access lead to the elimination of effective competition in the downstream market?
- (e) Is there an objective justification for the refusal to supply?
- (f) Remedies
- (ii) Horizontal foreclosure: competitive harm at the supplier’s level of the market
- (a) Refusal to supply a distributor as a disciplining measure
- (b) Refusal to supply a potential competitor in the supplier’s market
- (c) Refusal to supply an existing competitor in the supplier’s market
- (iii) Refusal to supply on the basis of nationality
- (iv) Refusal to supply to prevent parallel imports and exports
- (i) Vertical foreclosure: competitive harm in a downstream market
- (C) UK case-law
- (i) Commission decisions
- (ii) NCA decisions
- (iii) UK cases
- (A) Google Shopping
- (i) Commission decision
- (ii) General Court’s judgment
- (B) EU cases after Google Shopping
- (C) UK cases
- (A) Harming the competitive structure of the market
- (B) Vexatious litigation
- (C) Settling litigation
- (D) Other cases
- 1. Introduction
- 2. Cost Concepts
- (A) Fixed costs and sunk costs
- (B) Marginal cost
- (C) Variable costs
- (D) Avoidable costs
- (E) Average variable cost (‘AVC’)
- (F) Average avoidable cost (‘AAC’)
- (G) Long-run average incremental cost (‘LRAIC’)
- (H) Average total cost (‘ATC’)
- (I) Stand-alone cost
- 3. Excessive Pricing
- (A) Arguments against direct control
- (B) When might it be legitimate for a competition authority to investigate suspected excessive prices?
- (i) Imperfect markets
- (ii) Excessive prices that are exclusionary or harmful to the single market
- (C) When is an excessive price abusive?
- (i) The price must be excessive and unfair
- (ii) Is the price excessive?
- (iii) Is the excessive price unfair?
- (iv) What is the remedy for an unfair price?
- (v) EU cases on excessive pricing
- (a) Commission cases
- (b) Article 267 references to the Court of Justice
- (c) NCA cases
- (vi) UK cases on excessive pricing
- (a) Decisions of competition authorities and appeals
- (b) Private litigation and excessive pricing
- (A) Why is the law on conditional rebates controversial?
- (i) Hoffmann-La Roche v Commission
- (ii) Terminology
- (iii) The controversy
- (B) Intel v Commission
- (i) The Commission’s decision
- (ii) The judgment of the General Court
- (iii) The judgment of the Court of Justice
- (iv) Remittal to the General Court
- (C) Cases following Intel
- (D) The Commission’s Guidance on Article 102 Enforcement Priorities
- (i) General approach
- (ii) Conditional rebates
- (E) The role of as-efficient competitors
- (i) The as-efficient competitor principle
- (ii) The AEC test
- (F) Objective justification
- (G) UK law
- (A) EU law
- (i) Rebates having a tying effect
- (ii) ‘Across-the-board’ rebates
- (iii) Delivered pricing as a tie-in
- (iv) Bundling
- (B) UK law
- (A) Introduction
- (B) The Areeda and Turner test
- (C) EU law
- (i) The rule in Akzo v Commission and subsequent cases
- (ii) Intention to eliminate competition
- (iii) Is it necessary to show the possibility of recoupment?
- (iv) Defences
- (v) Are the standards of AVC and ATC always appropriate?
- (vi) The Commission’s Guidance on Article 102 Enforcement Priorities
- (vii) Predatory price cutting and cross-subsidisation
- (viii) Selective price cutting but not below cost
- (a) Eurofix-Bauco/Hilti
- (b) Irish Sugar v Commission
- (c) Compagnie Maritime Belge Transports v Commission
- (d) Post Danmark I
- (i) Findings of predatory pricing
- (ii) Cases where predatory pricing was not established
- (A) The economic phenomenon
- (B) EU law
- (i) Is the accused undertaking operating on an upstream and a downstream market?
- (ii) Does the accused undertaking hold a dominant position in the upstream market?
- (iii) Do the dominant firm’s upstream and downstream prices allow an undertaking as efficient as the dominant firm to compete on the downstream market?
- (iv) Does the margin squeeze have an anti-competitive effect?
- (v) Is there an objective justification for the margin squeeze?
- (vi) The Commission’s Guidance on Article 102 Enforcement Priorities
- (C) UK law
- (i) Findings of unlawful margin squeeze
- (ii) Rejections of complaints about margin squeezes
- (A) The meaning of price discrimination
- (B) Possible competition concerns
- (C) EU law
- (i) Does the accused undertaking have a dominant position?
- (ii) Has the dominant undertaking entered into equivalent transactions with other trading parties?
- (iii) Is the dominant undertaking guilty of applying dissimilar conditions to equivalent transactions?
- (iv) Could the discrimination place other trading parties at a competitive disadvantage?
- (v) Is there an objective justification for the discrimination?
- (C) UK law
- (A) Excessive pricing that impedes parallel imports and exports
- (B) Geographic price discrimination
- (C) Rebates that impede imports and exports
- 1. Introduction
- (A) Definitions
- (B) Intellectual property rights and the single market
- (C) Is there an inevitable tension between intellectual property rights and competition law?
- 2. Licences of Intellectual Property Rights: Article 101
- (A) Introduction
- (B) Typical terms in licences of intellectual property rights
- (i) Territorial exclusivity
- (ii) Royalties
- (iii) Duration
- (iv) Field of use restrictions
- (v) Best endeavours and non-competition clauses
- (vi) No-challenge clauses
- (vii) Improvements
- (viii) Tying and bundling
- (ix) Prices, terms and conditions
- (C) The application of Article 101(1) to licences of intellectual property rights
- (i) Patent licences: territorial exclusivity
- (ii) Patent licences: non-territorial restrictions
- (iii) Know-how licences
- (iv) Copyright licences
- (v) Software licences
- (vi) Trade mark licences
- (vii) Licences of plant breeders’ rights
- (viii) Sub-contracting agreements
- (D) The application of Article 101(3) to licences of intellectual property rights
- 3. Technology Transfer Agreements: Regulation 316/2014
- (A) Article 1: definitions
- (B) Article 2: block exemption
- (i) Many technology transfer agreements do not infringe Article 101(1)
- (ii) If it is not forbidden, it is permitted
- (iii) The exempted agreement must be bilateral
- (iv) Duration
- (v) Ancillary provisions in relation to other intellectual property rights
- (vi) Relationship with other block exemptions
- (C) Article 3: the market share cap
- (i) Horizontal agreements
- (a) Technology markets
- (b) Product markets
- (ii) Vertical agreements
- (iii) Technology markets
- (iv) Product markets
- (v) Article 8: calculation of market shares and marginal relief
- (vi) Examples
- (i) Horizontal agreements
- (D) Article 4: hard-core restrictions
- (i) Agreements between competing undertakings: horizontal agreements
- (a) Prices
- (b) Output
- (c) The allocation of markets and customers
- (d) Exploitation by the licensee
- (ii) Agreements between non-competing undertakings: vertical agreements
- (a) Prices
- (b) Territories and customer groups
- (c) Restrictions in selective distribution systems
- (i) Agreements between competing undertakings: horizontal agreements
- (E) Article 5: excluded restrictions
- (F) Article 6: withdrawal in individual cases
- (i) Article 6(1): withdrawal by the Commission in individual cases
- (ii) Article 6(2): withdrawal by an NCA
- (G) Article 7: non-application of the Regulation
- (H) Article 8: application of the market share thresholds
- (I) Articles 9 to 11: other block exemptions, transitional period and period of validity
- (J) The Commission’s review of Regulation 316/2014
- (A) Technology pools
- (i) Effects of technology pools
- (a) Pro-competitive effects
- (b) Anti-competitive effects
- (c) Regulation 316/2014
- (ii) Assessment of the formation and operation of technology pools
- (a) Open participation
- (b) Selection and nature of the pooled technologies
- (c) Selection and function of independent experts
- (d) Exchange of sensitive information
- (iii) A safe harbour
- (iv) Assessment of individual restraints in agreements between the pool and its licensees
- (i) Effects of technology pools
- (B) Copyright pools
- (C) Settlements of litigation
- (i) Settlement agreements
- (a) ‘Pay-for-delay’ agreements
- (b) Cross-licensing
- (c) No-challenge clauses
- (ii) Trade mark settlements
- (i) Settlement agreements
- (D) Concerted refusal to license intellectual property rights
- (A) Compulsory licences
- (i) The Renault and Volvo judgments
- (ii) The Magill case
- (iii) IMS Health
- (iv) The Microsoft case
- (a) The Commission and the General Court assumed that Microsoft enjoyed intellectual property protection
- (b) The General Court’s summary of the applicable law
- (c) The General Court’s benign application of the ‘new product’ requirement
- (d) Remedy
- (i) Potential concerns
- (ii) Enforcement action
- (iii) The Digital Markets Act
- (i) Unlawful acquisition of technology
- (ii) Demanding excessive royalties
- (iii) Seeking an injunction to enforce standard-essential patents
- (iv) FRAND licences for standard-essential patents
- (a) The Unwired Planet case
- (b) Cases after Unwired Planet
- (c) Proposed Regulation on licensing of SEPs
- (v) Patent assertion entities
- (vi) Patent ambush
- (vii) Vexatious behaviour
- (viii) Misuse of regulatory procedures
- (A) Licences of intellectual property rights: the Chapter I prohibition
- (B) Settlement agreements
- (C) The Chapter II prohibition
- (D) Market investigations
- 1. Introduction
- 2. Terminology
- (A) The meaning of ‘merger’ and ‘concentration’
- (B) The horizontal, vertical and conglomerate effects of mergers
- (i) Horizontal effects
- (ii) Vertical effects
- (iii) Conglomerate effects
- (A) Economies of scale and scope
- (B) Other efficiencies
- (C) National champions
- (D) Management efficiency and the market for corporate control
- (E) Exiting an industry
- (F) Greed, vanity, fear and drugs
- (G) Increasing market power
- (A) Is merger control necessary?
- (B) Assessing the competitive effects of mergers
- (i) Theories of harm
- (a) Unilateral or non-coordinated effects
- (b) Coordinated effects
- (c) Vertical effects
- (d) Conglomerate effects
- (e) Killer acquisitions
- (ii) Evidence
- (iii) The counterfactual
- (i) Theories of harm
- (C) The substantive test: SLC, dominance, SIEC
- (D) Guidelines
- (E) Remedies
- (F) Merger control and the public interest
- (i) Loss of efficiency and ‘short-termism’
- (ii) Concentration of wealth
- (iii) Unemployment and regional policy
- (iv) Overseas control
- (v) Special sectors
- (vi) Sustainability
- 1. Introduction
- 2. Overview of EU Merger Control
- (A) Brief description of the EU system of merger control
- (B) Institutional arrangements
- (C) The Implementing Regulation and the Commission’s Notices and Guidelines
- (i) The Implementing Regulation
- (ii) Commission Notices and Guidelines
- (iii) Best Practice Guidelines
- (D) Access to the Commission’s decisions
- (E) Foreign direct investment and foreign subsidies
- (F) Digital Markets Act
- 3. Jurisdiction
- (A) Article 3: meaning of a concentration
- (i) Article 3(1)(a): mergers
- (ii) Article 3(1)(b): acquisition of control
- (a) The concept of control
- (b) Sole control
- (c) Joint control
- (iii) Changes in the quality of control
- (iv) Joint ventures—the concept of full functionality
- (a) Operational autonomy
- (b) Activities beyond one specific function for the parents
- (c) Sale/purchase relations between the joint venture and its parents
- (d) Operation on a lasting basis
- (e) Implications of full functionality
- (v) Exceptions
- (B) Article 1: concentrations having a Union dimension
- (i) Thresholds
- (a) Article 1(2)
- (b) Article 1(3)
- (ii) Notion of undertaking concerned
- (iii) Relevant date for establishing jurisdiction
- (iv) Turnover
- (v) Geographic allocation of turnover
- (vi) Conversion of turnover into euros
- (vii) Provisions for credit and other financial institutions and insurance undertakings
- (viii) Illustrations
- (i) Thresholds
- (C) Article 21: one-stop merger control
- (i) The benefits of one-stop merger control
- (ii) The benefits of more flexible jurisdictional rules
- (D) Article 4(4) and Article 9: referral of concentrations having a Union dimension to the competent authorities of the Member States
- (i) Pre-notification referrals: Article 4(4)
- (ii) Post-notification referrals: Article 9
- (a) Article 9(2)(a)
- (b) Article 9(2)(b)
- (iii) Statistics
- (E) Article 4(5) and Article 22: referral of concentrations not having a Union dimension by Member States to the Commission
- (i) Pre-notification referrals: Article 4(5)
- (ii) Post-notification referrals: Article 22
- (iii) Statistics
- (iv) Article 4(5) and Article 22 in practice
- (F) Article 21(4): legitimate interest clause
- (i) Authorised applications of Article 21(4)
- (ii) Prohibited applications of Article 21(4)
- (G) Defence
- (A) Article 3: meaning of a concentration
- 4. Notification, Suspension of Concentrations, Procedural Timetable and Powers of Decision
- (A) Notification
- (i) Form CO
- (ii) Short Form CO
- (a) Eligibility criteria
- (b) Flexibility clause to change from normal to simplified procedure
- (c) Safeguards and exclusions
- (iii) Reasoned submissions
- (iv) Incomplete notifications
- (v) Fines for incorrect or misleading information
- (vi) Fines for failing to notify
- (B) Suspension of concentrations
- (i) ‘Implementation’
- (ii) Fines for ‘gun-jumping’
- (C) Procedural timetable and powers of decision of the Commission
- (i) Phase I investigations
- (a) Possible decisions at the end of Phase I
- (b) Timetable
- (ii) Phase II investigations
- (a) Possible decisions at the end of Phase II
- (b) Timetable
- (c) Phase II procedure
- (iii) ‘Phase III’
- (i) Phase I investigations
- (A) Notification
- (A) The ‘significant impediment to effective competition’ test
- (i) The dominance/SIEC debate
- (ii) The non-collusive oligopoly gap
- (iii) The solution: ‘SIEC’
- (iv) The need for a causal link between the concentration and the SIEC
- (v) The ‘counterfactual’
- (vi) Article 2(1): the appraisal criteria
- (B) Publication of merger guidelines
- (C) Competition policy and industrial policy
- (D) Competition Policy and Sustainability
- (E) Market definition
- (i) Form CO: ‘affected markets’
- (ii) Commission decisions
- (iii) Effect of decisions on market definition
- (iv) Quantitative tests
- (F) Horizontal mergers
- (i) Market shares and concentration levels
- (a) Market shares
- (b) Concentration levels
- (ii) Possible anti-competitive effects of horizontal mergers
- (a) Non-coordinated effects
- (b) Coordinated effects
- (c) Mergers with a potential competitor
- (d) Mergers creating or strengthening buyer power
- (iii) Countervailing buyer power
- (iv) Entry
- (v) Efficiencies
- (vi) The ‘failing firm’ defence
- (i) Market shares and concentration levels
- (G) Non-horizontal mergers
- (i) Overview
- (ii) Market shares and concentration levels
- (iii) Vertical mergers
- (a) Non-coordinated effects: foreclosure
- (b) Other non-coordinated effects
- (c) Coordinated effects
- (iv) Conglomerate mergers
- (a) Non-coordinated effects
- (b) Coordinated effects
- (c) Increased interest in conglomeracy—digital/platform markets
- (v) Cases on non-horizontal mergers
- (H) Articles 2(4) and 2(5) of the EUMR: full-function joint ventures and ‘spillover effects’
- (i) A practical example
- (ii) Articles 2(4) and 2(5) in practice
- (H) Contractual restrictions directly related and necessary to a merger: ‘ancillary restraints’
- (i) Introduction
- (ii) General principles
- (iii) Principles applicable in cases of the acquisition of an undertaking
- (iv) Principles applicable in cases of full-function joint ventures
- (A) The legal basis for commitments
- (B) Form RM
- (C) The Commission’s Notice on remedies
- (i) General principles
- (ii) Different types of remedies
- (a) Divestiture of a business to a suitable purchaser
- (b) Removal of links with competitors
- (c) Other remedies
- (d) Review clauses
- (iii) Procedural issues
- (iv) Implementation of commitments
- (v) Review of commitments
- (D) Remedies in practice
- (A) Acts
- (B) Standing
- (i) The parties to the transaction
- (ii) Third parties
- (C) The approach to evidence
- (D) The expedited procedure
- (E) Examples of third party appeals
- (i) Appeals against the Commission’s refusal to take jurisdiction
- (ii) Appeals against Article 9 references
- (iii) Appeals against unconditional clearances
- (iv) Appeals against conditional clearances
- (v) Appeals seeking access to information
- (F) Damages claims against the Commission
- (A) Close and constant liaison with Member States
- (B) Relations with non-EU countries
- (i) Reciprocity
- (ii) The international dimension
- (A) Statistics
- (B) Table of Phase II investigations
- (C) Comment
- (i) Outright prohibitions: horizontal non-coordinated effects
- (ii) Outright prohibitions: horizontal non-coordinated effects—non-collusive oligopoly
- (ii) Outright prohibitions: horizontal coordinated effects
- (iii) Outright prohibitions: vertical effects
- (iv) Outright prohibitions: conglomerate effects
- (v) Prohibition decisions annulled on appeal
- (vi) Unconditional clearances
- (vii) Conditional clearances
- (a) Clearances subject to commitments: horizontal non-coordinated effects
- (b) Clearances subject to commitments: horizontal coordinated effects
- (c) Clearances subject to commitments: vertical effects
- (d) Clearances subject to commitments: conglomerate effects
- (viii) Abandonment of notifications
- 1. Introduction
- 2. Overview of UK Merger Control
- (A) Part 3 of the Enterprise Act 2002
- (B) Brief description of the system of merger control in the UK
- (C) Institutional arrangements
- (D) Guidelines, rules of procedure and other relevant publications
- 3. The CMA’s Duty to Make References: Phase 1 Investigations
- (A) Duty to make references: completed mergers
- (i) Duty to refer
- (a) The CMA’s approach to the duty to refer
- (b) Gathering information in relation to a possible reference
- (ii) Discretion not to refer
- (a) Markets of insufficient importance
- (b) Customer benefits
- (iii) Circumstances in which a reference cannot be made
- (i) Duty to refer
- (B) Duty to make references: anticipated mergers
- (C) Relevant merger situations
- (i) Enterprises ceasing to be distinct
- (a) ‘Enterprises’
- (b) ‘Cease to be distinct’
- (ii) The turnover test
- (iii) The share of supply test
- (iv) Time limits and prior notice
- (i) Enterprises ceasing to be distinct
- (D) CMA procedure in Phase 1
- (i) Notifying mergers to the CMA
- (a) No duty to notify
- (b) Submitting a merger notice
- (c) Fast-track references
- (ii) The assessment process
- (iii) Procedural timetable
- (iv) Ancillary restraints
- (v) Undertakings in lieu of a reference
- (a) Legal basis
- (b) Guidance on undertakings in lieu
- (c) Procedure
- (d) Effect of accepting undertakings in lieu
- (e) Examples
- (vi) Communication and publication of Phase 1 decisions
- (vii) Fees
- (i) Notifying mergers to the CMA
- (A) Duty to make references: completed mergers
- (A) The Phase 2 Inquiry Group and case team
- (B) Questions to be decided in relation to completed mergers
- (C) Questions to be decided in relation to anticipated mergers
- (D) Investigations and reports
- (E) Duty to remedy the anti-competitive effects of mergers
- (F) Time limits for the implementation of remedies
- (G) CMA procedure in Phase 2
- (A) Introduction
- (B) A substantial lessening of competition
- (i) What is an SLC?
- (ii) How an SLC might arise
- (iii) How the CMA assesses evidence
- (C) The counterfactual
- (i) What is the counterfactual?
- (ii) The approach to the counterfactual
- (iii) Entry or expansion by one of the merging firms
- (iv) The exiting firm scenario
- (D) Horizontal unilateral effects
- (i) Differentiated products
- (ii) Two-sided platforms
- (iii) Local mergers
- (iv) Undifferentiated products
- (E) Potential and dynamic competition
- (F) Coordinated effects
- (G) Vertical and conglomerate effects
- (H) Countervailing factors
- (i) Merger efficiencies
- (a) Rivalry-enhancing efficiencies
- (b) Relevant customer benefits
- (ii) Entry and expansion
- (i) Merger efficiencies
- (I) The market in which an SLC arises
- (A) Interim measures
- (i) Initial enforcement orders: Phase 1 investigations
- (ii) Interim restrictions and powers: Phase 2 investigations
- (a) Statutory restrictions on dealings
- (b) Interim undertakings and orders to prevent pre-emptive action
- (iii) Initial enforcement orders, interim orders and undertakings: enforcement and penalties
- (iv) Unwinding orders
- (B) ‘Final powers’ or ‘remedies’
- (i) Schedule 8 to the Enterprise Act
- (ii) General restrictions on conduct
- (iii) General obligations to be performed
- (iv) Acquisitions and divisions
- (v) Supply and publication of information
- (vi) National security, media and financial stability mergers
- (vii) Monitoring compliance and determination of disputes
- (viii) The CMA’s approach to remedies
- (ix) Examples of Phase 2 remedies
- (C) Enforcement functions of the CMA
- (A) Investigation powers and penalties
- (B) Review of decisions under Part 3 of the Enterprise Act
- (A) Basic statistical analysis
- (B) Abandoned mergers
- (C) Completed mergers
- (D) The number of findings of an SLC
- (E) The number of outright prohibitions of anticipated mergers
- (F) The Brexit effect
- (G) Healthcare
- (A) Public interest cases
- (i) Public interest considerations
- (ii) Procedure in public interest cases: Phase 1
- (iii) Procedure in public interest cases: Phase 2
- (iv) The public interest provisions in practice
- (B) ‘Special public interest cases’
- (i) Procedure in special public interest cases
- (ii) The special public interest provisions in practice
- (C) European mergers
- (D) Mergers in the water industry
- 1. Introduction
- 2. Nuclear Energy
- 3. Military Equipment
- 4. Agriculture
- (A) Treaty provisions
- (B) Council Regulations 1184/2006 and 1308/2013
- (C) Annex I and non-Annex I products
- (D) Derogation: national market organisations
- (E) Derogation: common market organisations
- (F) Derogation: recognised interbranch organisations
- (G) Derogation: vertical and horizontal initiatives for sustainability
- (H) Derogations in practice
- (I) UK law
- 5. Coal and Steel
- 6. Transport
- (A) Inland transport
- (i) EU law
- (ii) Practical application of the EU competition rules to inland transport
- (iii) UK law
- (B) Maritime transport
- (i) EU law
- (a) Procedural rules
- (b) Substantive rules
- (c) Block exemption for shipping consortia
- (ii) Practical application of the EU competition rules to maritime transport
- (a) Application of Article 101 TFEU
- (b) Application of Article 102 TFEU
- (iii) UK law
- (i) EU law
- (C) Air transport
- (i) EU law: liberalisation
- (ii) EU law: competition rules
- (iii) Practical application of the EU competition rules to air transport
- (a) Application of Article 101 TFEU
- (b) Application of the EUMR
- (iv) UK law
- (A) Inland transport
- (A) Demonopolisation, liberalisation and privatisation
- (B) EU law and the liberalisation of markets
- (C) Regulatory systems in the UK for utilities
- (A) EU law
- (i) Legislation
- (a) European Electronic Communications Code
- (b) Article 106(3) TFEU
- (c) Net neutrality and the open internet
- (ii) Application of EU competition law
- (i) Legislation
- (B) UK law
- (i) Competition Act 1998
- (ii) Enterprise Act 2002
- (A) EU law
- (i) Legislation
- (ii) Application of EU competition law
- (a) The Corbeau case and the universal service obligation
- (b) The Commission’s Notice on competition in the postal sector
- (c) Application of Article 102
- (A) EU law
- (i) Legislation
- (ii) Application of EU competition law
- (B) UK law
- (i) Competition Act 1998
- (ii) Enterprise Act 2002
- (A) Competition Act 1998
- (B) Enterprise Act 2002
- (A) Policy reports on digital platforms
- (B) Concerns for competition law and policy
- (i) Potential competition concerns
- (ii) Substantive rules
- (iii) Practical considerations
- (iv) Remedies
- (C) Competition law enforcement
- (i) Enforcement in the EU
- (ii) Enforcement in the UK
- (D) Legislation
- (i) The EU Digital Services Act
- (ii) The EU Digital Markets Act
- (iii) The UK Digital Markets, Competition and Consumers Act 2024
- EU competition law
- UK competition law
- UK and EU competition law combined
- US antitrust law
- International
- Competition policy
- Economics
- Market definition and market power
- Procedure and evidence
- Private enforcement
- Important websites
- 2 Overview of EU and UK competition law
- 3 Article 101(1)
- 5 Article 102
- 18 Abuse of dominance (2): pricing practices
- 20 Mergers (1): introduction
- 21 Mergers (2): EU law
- 22 Mergers (3): UK
UM RAFBÆKUR Á HEIMKAUP.IS
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