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- Preliminary Material
- Editors
- Foreword
- Preface to Eighth Edition
- Contents
- Tables
- Tables of Cases
- 1 Alphabetical Table of Cases of the Court of Justice and the General Court of the European Union and European Commission Decisions
- 2 Numerical Table of Court of Justice Cases
- 3 Numerical Table of General Court cases
- 4 Numerical Tables of Commission Merger and Joint Venture Decisions
- 5 Tables of European Court of Human Rights, EFTA Court and National cases
- European Court of Human Rights
- EFTA Court
- EFTA Surveillance Authority
- National Cases
- Austria
- Belgium
- Cyprus
- Czech Republic
- Denmark
- Estonia
- Finland
- France
- Germany
- Greece
- Hungary
- Ireland
- Italy
- Latvia
- Lithuania
- Luxembourg
- Malta
- Netherlands
- Norway
- Poland
- Portugal
- Romania
- Slovak Republic
- Slovenia
- Spain
- Sweden
- Switzerland
- United Kingdom
- United States
- Tables of Treaties and Legislation
- Abbreviations
- Main Text
- 1 Competition Law and Policy in the EU
- Preliminary Material
- 1 Introduction
- 2 EU Competition Law and Policy
- (a) The EU Treaties
- (b) EU competition law
- (c) EU competition policy
- (d) Interpretation of EU competition law
- 3 EU Competition Law: Institutions
- (a) The EU institutions
- (b) Directorate-General for Competition
- (i) Generally
- (ii) Structure
- (iii) Enforcement through investigation and decision
- (iv) Legislative powers
- (v) Notices and guidelines
- (vi) DG Competition documents and website
- (c) The Court of Justice of the EU
- The Court of Justice of the European Union.
- Composition and procedure of the General Court.
- Jurisdiction of the General Court.
- Composition and procedure of the Court of Justice.
- Jurisdiction of the Court of Justice.
- Judicial review by the EU Courts.
- Judgments of the EU Courts.
- Preliminary rulings.
- Opinions of the Advocates General.
- (d) The NCAs and National Courts
- 4 Territorial Ambit of EU Competition Rules
- (a) The Member States: enlargement
- (b) The Member States: current geographic scope
- (c) EFTA and the EEA
- EFTA.
- EEA.
- The EFTA institutions.
- Uniform application of competition policy in the EEA.
- The competition provisions of the EEA Agreement.
- Allocation of jurisdiction under the EEA Agreement.
- Powers of the Commission and the EFTA Surveillance Authority.
- Cooperation in ‘mixed’ cases.
- Cooperation in investigations.
- The EFTA Court.
- Judicial review by the EFTA Court.
- (d) Agreements between the EU and third countries
- International cooperation.
- Competition cooperation agreements with the United States of America.
- Competition cooperation agreements with other States.
- Bilateral agreements with candidate countries and potential candidates.
- Association agreements between the EU and other states.
- Cooperation between the Commission and enforcement bodies in other States.
- Multilateral international cooperation.
- The International Competition Network.
- 5 The Territorial Scope of EU Competition Law
- In general.
- (a) Trade into the EU from third countries
- (b) Trade from the EU into third countries
- (c) Jurisdiction over undertakings outside the EU
- The issue.
- Articles 101 and 102 TFEU.
- Public international law.
- International comity.
- Non-interference.
- Single economic entity doctrine.
- Implementation test.
- Qualified effects test: Gencor.
- Qualified effects test: Intel.
- Extra-territorial limits of damages actions.
- Application of EU competition rules prior to Accession.
- 6 Effect on Trade between Member States
- (a) Generally
- Effect on trade: Articles 101 and 102.
- Effect on trade and the obligation to apply Articles 101 and 102.
- Effect on trade: Merger Regulation.
- Effect on trade: State aid.
- Effect on Trade Guidelines.
- Concept of trade.
- Factors relevant to establishing an effect on trade.
- Alteration of the pattern of trade.
- Agreements or conduct partitioning the single market.
- Altering the structure of competition.
- Potential effect.
- Indirect effects.
- Appreciable effect.
- The ‘NAAT-rule’ in Article 101 cases.
- Application of the ‘NAAT-rule’.
- NAAT-rule is a rebuttable presumption.
- Presumption of appreciable effect in relation to certain agreements.
- Non-application of presumption of appreciable effect.
- (b) Particular aspects of effect on trade
- Effect of agreement as a whole in Article 101 cases.
- Effect of conduct in Article 102 cases.
- Barriers to entry, expansion and exit.
- Agreements or practices confined to a single Member State.
- Findings of no effect on trade.
- Particular kinds of domestic agreements.
- Particular kinds of domestic abusive conduct.
- Appreciability of an abuse confined to a single Member State.
- Agreement in only part of a Member State.
- Dominance in only part of a Member State.
- Restrictions arising from activities outside the EU.
- (a) Generally
- 7 Other Treaty Provisions
- (a) Other provisions of the TEU and TFEU
- Article 4(3) TEU: the duty of sincere cooperation.
- Article 5 TEU: principle of conferral.
- Article 5 TEU: principle of subsidiarity.
- The principle of subsidiarity in EU competition law.
- Article 5 TEU: principle of proportionality.
- Article 3 TFEU: areas of Union competence.
- Article 18 TFEU: non-discrimination.
- Articles 34 to 36 TFEU: free movement of goods.
- Article 37 TFEU: State monopolies.
- Other relevant Treaty provisions.
- (b) European Coal and Steel Community
- (c) Charter of Fundamental Rights
- (d) International agreements
- (a) Other provisions of the TEU and TFEU
- 2 Article 101(1)
- Preliminary Material
- 1 Introduction
- 2 Undertakings
- (a) Generally
- Undertakings.
- Identifying an undertaking.
- Carrying on economic activity.
- Participation in a market.
- No need to be profit-making.
- Legal status is irrelevant.
- Purchasing activity.
- Entities found to be acting as undertakings.
- Individuals acting as undertakings.
- Shareholders as undertakings.
- Undertakings outside the EU.
- (b) The State as an undertaking
- Different activities of the State.
- Exercise of public powers.
- Activities ancillary to the exercise of public powers.
- Distinction between economic and non-economic activity.
- Occupation and use of publicly owned facilities.
- Practice in the Member States.
- Insurance and social security schemes.
- Provision of healthcare and other social services.
- Regulatory bodies.
- Article 106 TFEU.
- Other statutory bodies.
- Local authorities and municipalities.
- (c) An undertaking is a single economic entity
- Undertakings are economic entities.
- Arrangements within a group of companies.
- Arrangements between members of a group of companies.
- Attribution to a parent company of the conduct of a subsidiary.
- Attribution to a parent company of the conduct of wholly-owned subsidiaries.
- Attribution to a parent company of the conduct of partly-owned subsidiaries.
- Attribution to parent companies of the conduct of a joint venture.
- Branches.
- Agents.
- Independent service providers.
- Employees.
- Trade unions.
- (a) Generally
- 3 Agreements, Decisions and Concerted Practices
- (a) Generally
- (b) Agreements
- Definition of an agreement.
- Evidence of an agreement.
- Agreements may be informal.
- Agreements may be incomplete.
- Agreements made under duress.
- Authority to enter into agreements.
- Article 101 does not apply to genuinely unilateral conduct.
- Distinction between unilateral conduct and collusive behaviour.
- Measure forms part of continuous commercial relations.
- Article 101 applies to tacit acquiescence to unilateral conduct.
- Article 101 applies to anti-competitive measures envisaged and authorised by an agreement.
- Incorporation of terms in an agreement.
- Connected agreements.
- Horizontal and vertical agreements.
- Government measures.
- Infringement of intellectual property rights.
- Trade mark delimitation agreements.
- Assignments and licences of intellectual property rights.
- Terminated or ‘spent’ agreements.
- Settlements agreements.
- Collective labour agreements falling outside Article 101.
- Collective labour agreements falling within Article 101.
- Agreements assessed as part of a merger or State aid.
- Accession agreements.
- Agreements made prior to date of accession to the EU.
- (c) Concerted practices
- Generally.
- Definition of a concerted practice.
- Elements of a concerted practice.
- Concertation or cooperation between undertakings.
- Unilateral disclosure of information on future conduct can give rise to a concerted practice.
- Conduct on the market.
- Presumption of a causal connection between concertation and conduct.
- The presumption may apply to a meeting on a single occasion.
- The presumption is rebuttable.
- The presumption has been rebutted.
- Standard of proof for a concerted practice.
- Documents showing a concerted practice.
- Alternative explanations for conduct where there are documents showing a concerted practice.
- Alternative explanations for conduct where the content of the documents is ambiguous.
- Parallel conduct can be strong evidence of a concerted practice.
- Alternative explanations for parallel conduct where there are no documents.
- Indirect contact between undertakings can give rise to a concerted practice.
- Contact through information technology can give rise to a concerted practice.
- Complaints can give rise to a concerted practice.
- Facilitators of a concerted practice.
- Vertical concerted practices.
- Legal burden of proof for duration of a concerted practice.
- Evidential burden for proving the duration of a concerted practice.
- (d) Single and continuous infringement
- Concept of a single and continuous infringement.
- Consequences of a single and continuous infringement.
- Conditions for a single and continuous infringement.
- Overall plan pursuing a common objective.
- Criteria for assessing whether there is a single infringement pursuing an overall plan.
- A single infringement can extend to multiple products.
- Intentional contribution to the overall plan.
- Actual or presumed awareness.
- Partial participation in a single and continuous infringement.
- Duration of participation in a single and continuous infringement.
- Proof of participation in a single and continuous infringement.
- The practices that comprise a single and continuous infringement must be shown to be anti-competitive.
- A Commission decision finding a single and continuous infringement.
- A single Commission investigation for separate infringements.
- (e) Repeated infringement
- (f) Public distancing
- (g) Decisions by associations of undertakings
- 4 The Prevention, Restriction or Distortion of Competition
- (a) Generally
- Competition.
- Prevention, restriction or distortion.
- Restrictions of competition and the functioning of the internal market.
- Restrictions of competition and detriment to consumers.
- Restrictions of competition and restrictions of commercial freedom.
- Restrictions of competition can arise irrespective of the markets on which the parties operate.
- Restrictions of competition and increases in price.
- Restrictions of competition must always be assessed in context.
- Restrictions of competition by object or by effect.
- Case law and guidelines on restrictions of competition.
- (b) Some basic concepts
- Horizontal and vertical agreements.
- Decision-making independence.
- Actual and potential competition.
- Actual and potential effects.
- Inter-brand and intra-brand competition.
- Inter-technology and intra-technology competition.
- Foreclosure.
- Anti-competitive foreclosure.
- The counterfactual.
- Counterfactual analysis.
- Absence of competition in the counterfactual.
- Restriction of competition outside the internal market.
- Per se and rule of reason.
- There are no per se rules under Article 101(1).
- Rule of reason under Article 101(1)?
- Objective justification.
- Restrictions of competition and the defence under Article 101(3).
- Restrictions of competition must be appreciable.
- ‘Unfair competition’ not deserving protection.
- (c) ‘Object or effect’
- (d) Restriction of competition by object
- Definition of ‘object’.
- Concept of restriction of competition by object is interpreted restrictively.
- Criteria for determining the object of an agreement.
- Content and objectives of an agreement.
- Legal and economic context.
- Exculpatory context.
- Alternative explanations.
- Experience with the harmful effects of an agreement.
- An agreement can have an anti-competitive object even if it also pursues legitimate aims.
- An agreement may restrict competition by object if it unjustifiably limits the ability of a competitor to determine independently the policy that it intends to adopt on the market.
- Object does not require an examination of effects.
- Object does not require a counterfactual analysis.
- Object does not require proof of an appreciable effect on competition.
- Object does not require proof of harm to final consumers.
- Object does not require an agreement to be implemented.
- Other irrelevant considerations in object cases.
- Effects may be relevant to the enforcement of Article 101 in object cases.
- Market definition in object cases.
- Restrictions of competition by object and no objective justification.
- Restrictions of competition by object and Article 101(3).
- Hardcore restrictions.
- Examples of horizontal object restrictions.
- Examples of vertical object restrictions.
- Agreement does not reveal a sufficient degree of harm to competition.
- Examples of agreements that did not reveal a sufficient degree of harm to competition.
- (e) Restriction of competition by effect
- Definition of effect.
- Theory of harm.
- Effects must be assessed by reference to an appropriate counterfactual.
- Foreclosure and coordinated effects.
- Actual and potential effects.
- Actual and potential competition.
- Analysis of the legal and economic context.
- Market power.
- Market definition.
- Cumulative or closing-off effect.
- Effects on parties’ ability and incentive to compete.
- Effect on third parties’ ability and incentive to compete.
- Markets where scope for competition is limited.
- Horizontal restrictions capable of having anti-competitive effects.
- Vertical restraints capable of having anti-competitive effects.
- Restrictions in licences of intellectual property rights.
- Restrictions on the exercise of legal remedies.
- Restrictions of competition contained in settlement agreements.
- (f) Restraints that typically fall outside Article 101(1)
- (g) Ancillary restraints
- (h) Regulatory rules
- (a) Generally
- 5 Appreciable Effect on Competition
- Generally.
- (a) Jurisprudence of the EU Courts
- De minimis principle does not apply to object restrictions.
- De minimis principle applies if the parties have a very small market share.
- Undertakings with a market share more than five per cent.
- Factors other than market share that affect appreciability.
- Market structure.
- Appreciable effect of agreement as a whole.
- Appreciable effect of agreements forming part of a network.
- Parallel networks of agreements.
- Other reasons for lack of appreciable effect.
- (b) Commission De Minimis Notice
- In general.
- De Minimis Notice does not apply to object restrictions.
- De Minimis Notice uses market share thresholds to assess non-appreciable effect.
- De Minimis Notice and cumulative effects.
- Legal effect of the De Minimis Notice on the Commission.
- Legal effect of the De Minimis Notice on NCAs and national courts.
- Vertical Restraints Guidelines.
- Vertical restraints: market position of the parties.
- Horizontal Cooperation Guidelines.
- 3 Article 101(3)
- Preliminary Material
- 1 Introduction
- Article 101(3).
- Article 101(3) applies across all sectors.
- Article 101(3) is directly applicable.
- Guidelines on the application of Article 101(3).
- Guidelines on the application of Article 101(3) to particular agreements.
- Relevance of earlier jurisprudence and decisional practice.
- Power of the Commission to adopt decisions applying Article 101(3).
- Application of Article 101(3) by NCAs.
- Application of Article 101(3) by national courts.
- Review by the EU Courts of Commission decisions applying Article 101(3).
- 2 Application in Individual Cases
- (a) Generally
- Any agreement may benefit from Article 101(3).
- Relationship between Article 101(1) and 101(3).
- Agreements must satisfy all of the conditions in Article 101(3).
- Burden of proof.
- Standard of proof.
- Duty to consider all aspects of a case.
- Article 101(3) applies for as long as the agreement remains anti-competitive and all its conditions are met.
- Unilateral conduct may preclude the application of Article 101(3).
- Effect of Article 102 on the application of Article 101(3).
- Effect of Article 101(3) on the application of Article 102.
- Effect of a block exemption Regulation on the application of Article 102.
- Effect of free movement provisions on the application of Article 101(3).
- (b) The first condition: benefits of an agreement
- (i) Generally
- Benefits must be objective.
- Benefits to consumers and others.
- Economic and/or non-economic benefits.
- Benefits in the market affected by the agreement.
- Benefits in more than one market.
- Benefits may arise in different geographic areas.
- Benefits must arise from the restrictive agreement.
- Benefits must be sufficient to compensate for the restriction of competition.
- Article 101(3) applies to goods and services.
- Classification of benefits is immaterial.
- Commission’s approach in the Article 101(3) Guidelines.
- Benefits must be causally linked to the restrictive agreement or provision.
- (ii) Cost efficiencies
- (iii) Qualitative efficiencies
- (iv) Improvements to market dynamics
- (v) Wider public benefits
- (vi) Absence of benefit
- (i) Generally
- (c) The second condition: fair share of benefits for consumers
- (d) The third condition: indispensability of restrictions
- (e) The fourth condition: no elimination of competition
- (a) Generally
- 3 Block Exemption
- (a) Generally
- Function of block exemptions.
- Block exemptions are not mandatory.
- Individual agreements that fall outside a block exemption may still benefit from Article 101(3).
- Interpretation of block exemptions.
- Commission’s Guidelines.
- Burden of proof.
- Third party activities.
- Council block exemptions and enabling regulations.
- (b) Current block exemption regulations
- (c) Withdrawal and disapplication
- (a) Generally
- 4 Article 53(3) of the EEA Agreement
- 4 Market Definition
- Preliminary Material
- 1 Introduction and Overview
- (a) The role of market definition
- (b) The concept of the relevant market
- (c) Relevance of market definition in EU competition law
- Market definition under Article 101.
- Market definition may be unnecessary in object cases.
- Market definition may be necessary in some object cases.
- Market definition is normally necessary in effects cases.
- Market definition under Article 101(3).
- Market definition under Article 102.
- Market definition under the Merger Regulation.
- Other contexts for market definition.
- (d) Methodology for defining the relevant market
- (i) Jurisprudence and guidelines
- (ii) Factors relevant to defining relevant markets
- Three sources of competitive constraints.
- Potential competition.
- Market definitions are contextual.
- There is no one correct market definition.
- There is no precedent for market definition.
- ‘One-way’ markets and asymmetric substitution.
- Market definitions are not static.
- Intensity of competitive constraints can vary within a market.
- (iii) The SSNIP test
- (iv) Limitations on the SSNIP test
- 2 Relevant Product Market
- In general.
- (a) Demand-side substitution
- Meaning of demand-side substitution.
- Product characteristics and functional interchangeability.
- Switching data.
- Stability of demand.
- Consumer preferences and perceptions.
- Switching costs and other barriers.
- Order and bidding data.
- Shock analysis.
- Demand-side substitution evidence: an example of past event evidence.
- Different absolute price levels.
- Price elasticity of demand.
- Critical loss analysis.
- Price correlations.
- Price discrimination resulting in separate markets.
- Trade relationships.
- Shares of supply.
- Evidence of the views of customers and competitors.
- Evidence from internal company documents.
- (b) Supply-side substitution
- In general.
- Use of supply-side substitution in practice.
- Conditions for consideration of supply-side substitution.
- Relationship between supply-side substitution and potential competition.
- Supply-side substitution evidence: switching costs.
- Supply-side substitution evidence: other barriers to switching.
- Supply-side substitution: shock analysis or event evidence.
- Application of the SSNIP test.
- (c) Particular issues in determining the relevant product market
- (i) Connected markets
- Primary and secondary products.
- Applying the SSNIP test to primary and secondary products.
- Candidate markets for primary and secondary products.
- Markets for brand-specific secondary products.
- System markets.
- Interaction between primary and secondary products.
- Market in licences or access to facilities.
- Separate markets for different stages of the production and distribution chain.
- Market definition and two-sided markets.
- Separate markets for branded and own label products.
- (ii) In-house production
- (iii) Continuous chains of substitution
- (iv) Procurement markets
- (v) Innovation competition
- (i) Connected markets
- 3 Relevant Geographic Market
- (a) Overview
- (b) Demand-side substitution
- Application of the SSNIP test.
- Transport costs.
- Pricing data.
- Differences in prices: further considerations.
- National preferences, standards and cultural features.
- Geographic purchasing patterns and trade flows.
- Shares of supply.
- Shock analysis or event evidence.
- Demand-side substitution evidence: market structure.
- Demand-side substitution evidence: internal company documents.
- Demand-side substitution evidence: views of customers and competitors.
- (c) Supply-side substitution
- (d) Particular issues in determining the relevant geographic market
- 4 Temporal Market
- 5 Cartels
- Preliminary Material
- 1 An Overview
- Cartels are an enforcement priority.
- Cartel statistics.
- Structure of this Chapter.
- (a) The typical subject-matter of cartel activity
- (b) How cartels operate
- (c) Arguments typically used to justify cartels
- No effects in the absence of the cartel.
- No higher prices than in the absence of the cartel.
- No interest in or benefit from the cartel.
- Participation under duress.
- Not active on the cartelised market.
- Industry crisis.
- Response to anti-competitive behaviour by other firms.
- Government connivance.
- Cartels alongside legitimate discussions.
- (d) Investigation and enforcement
- Information requests and inspections.
- The Leniency Notice.
- Cartel settlement.
- Proving the infringement.
- Admissibility and probative value of evidence.
- Contemporaneous documents.
- Documents from a cartel participant incriminating another undertaking.
- Credibility of statements made by a leniency applicant.
- Reliance on undisclosed sources.
- Reliance on documents gathered by a national public body.
- Proof of duration of the cartel.
- (e) Sanctions and redress
- 2 Prices and Pricing Restrictions
- Price-fixing prohibited.
- Harmful nature of horizontal price-fixing.
- Means of price-fixing.
- No need to prove the effect of horizontal price-fixing.
- Different types of price-fixing.
- Agreement to fix recommended or maximum prices.
- Elements added to the price.
- Common approaches to prices and structures.
- Other contractual provisions related to pricing.
- Price parity provisions and alignment of pricing.
- Price transparency.
- Price signalling.
- Price agreements among distributors.
- Price agreements on imports into the EU.
- Price agreements on exports out of the Union.
- Domestic price agreements extending to imports or exports.
- Domestic price agreements not extending to imports or exports.
- Purchase price-fixing.
- Collective resale price maintenance.
- Resale price maintenance for books.
- Individual resale price maintenance.
- Restrictions on advertising.
- Price-fixing can be defended under Article 101(3), but only rarely successful in practice.
- Relevance of state of the industry to justifying price-fixing.
- Relevance of legislative price controls.
- 3 Output Restrictions
- 4 Market-sharing and Customer Allocation
- (a) Generally
- Market-sharing.
- Market-sharing between producers.
- Market division between EU and non-EU producers.
- Market division between or involving distributors.
- Market-sharing between purchasers.
- Agreements on vertical integration.
- Domestic market-sharing agreements.
- Control over imports and exports.
- Market-sharing and trade with third countries.
- Market-sharing under Article 101(3).
- Specialisation and research and development agreements.
- (b) Buying and selling among competitors
- (c) Vertical arrangements between competitors
- (d) Market division by intellectual property rights
- (e) Customer allocation
- (a) Generally
- 5 Information Exchange
- The competition concern is a reduction in strategic uncertainty.
- Information exchange must be understood in context.
- Exchange of commercially sensitive information as part of a cartel.
- Exchange of public, historical or statistical information as part of a cartel.
- Exchange of information on competitors’ future pricing intentions.
- Exchange of information on non-competitors’ future pricing intentions.
- 6 Collective Exclusive Dealing
- 6 Non-Covert Horizontal Cooperation
- Preliminary Material
- 1 Introduction
- (a) Horizontal cooperation agreements
- (b) Joint ventures under the Merger Regulation or Article 101
- ‘Joint venture’.
- Cooperation agreements, JVs and full-function JVs.
- JVs that are not full-function: appraisal under Article 101.
- Strategic alliances.
- Substantive appraisal: Merger Regulation.
- Substantive appraisal: Article 101.
- Scrutiny of an existing JV under Article 101.
- Joint and several liability of a parent company for the conduct of a JV.
- (c) Sources of law and general principles for assessment
- Sources of law.
- De minimis and safe harbours.
- Centre of gravity of cooperation.
- Need to carry out an economically realistic analysis.
- Common risks to competition from horizontal cooperation.
- Assessment of ancillary restraints.
- Ancillary restraints: abstract analysis?
- Assessment of non-ancillary restraints.
- 2 Information Exchange
- (a) Introduction
- (b) Information exchange amounting to coordination between undertakings
- Direct or indirect sharing of information.
- Reciprocal or unilateral disclosures of information.
- Sharing of information between competitors.
- Public announcements and price signalling.
- Dissemination of information by an association of undertakings.
- Dissemination of information by a third party.
- ‘Hub and spoke’ or ‘ABC’ collusion.
- Hub and spoke agreements in national enforcement.
- Eturas.
- (c) Analysis of the competitive effects of information exchanges
- Pro-competitive effects.
- Anti-competitive effects.
- Article 101(1): restrictions by object.
- Horizontal Cooperation Guidelines: restrictions by object.
- Pre-pricing communications and exchange of quotation prices.
- Disclosure of pricing information: cases at the national level.
- Article 101(1): restrictions by effect.
- The nature and economic conditions of the relevant market and the nature of the product.
- The specific characteristics of the information exchange.
- Aggregated data.
- Other exchanges of information.
- Information on debtor credit-worthiness.
- Disclosure of technology.
- Information agreements under Article 101(3).
- 3 Cooperation in Research and Development
- 4 Production Agreements and Specialisation Agreements
- 5 Joint Purchasing Agreements
- 6 Commercialisation: Joint Selling, Marketing and Distribution
- 7 Standardisation Agreements and Agreements on Standard Terms
- Standardisation agreements.
- Agreements as to standard terms.
- Relevant markets.
- Competition concerns.
- (a) Assessment under Article 101(1)
- Standard setting falling outside Article 101.
- Restrictions by object.
- Restrictive effects of standardisation agreements.
- FRAND commitments.
- FRAND arises in different contexts.
- The meaning of FRAND.
- Use of technical standards to hinder imports.
- Agreements on standard terms falling outside Article 101.
- Assessment of agreements on standard terms under Article 101.
- (b) Application of Article 101(3)
- 8 Trade Associations
- 9 Horizontal Cooperation Agreements—Illustrations from Specific Sectors
- (a) Airlines
- (b) Banking and payment services
- Generally.
- Competition, the single market and regulation of financial services.
- Appreciable effect on trade between Member States.
- Price-fixing in the banking sector.
- Interest rate benchmark manipulation.
- Pricing measures for issuing payment cards.
- Exclusion of competitors from horizontal arrangements.
- Multilateral Interchange Fees.
- MasterCard MIFs: the Commission’s decision.
- MasterCard MIFs: the EU Courts’ judgments.
- MasterCard MIFs: national litigation.
- Visa MIFs: the Commission’s decisions and national litigation.
- NCA investigations of MIFs.
- MIF Regulation.
- (c) Professional services
- (d) Sporting bodies and competitions
- (e) Natural resources infrastructure
- (f) E-commerce platforms
- 7 Vertical Agreements Affecting Distribution or Supply
- Preliminary Material
- 1 Introduction
- 2 Vertical Agreements: General Principles
- (a) Identifying the agreement and its terms
- (b) Economic effects of vertical restraints
- (c) Approach to the application of Article 101
- Application of Article 101 to vertical restraints.
- Anti-competitive object.
- Anti-competitive effects: foreclosure.
- Cumulative effects.
- Anti-competitive effects: reduction of inter-brand or intra-brand competition.
- Vertical restraints of minor importance.
- Restrictions by object are not of minor importance.
- Vertical restraints falling outside Article 101(1).
- Vertical restraints under Article 101(3).
- 3 Regulation 330/2010
- Consider the applicability of the block exemption first.
- Scheme of the block exemption.
- Interpretation of the block exemption.
- Agreements falling outside of the block exemption.
- (a) Scope
- (b) Market share
- (c) Hardcore restrictions
- Effect of inclusion of a hardcore restriction.
- Hardcore restrictions in Article 4: summary.
- (i) Resale price maintenance
- (ii) Restrictions relating to territory and customer groups
- Restrictions on sales to particular territories or customers.
- The first exception: restriction on active sales by exclusive distributors.
- The second exception: restrictions on resale by wholesalers.
- The third exception: sales by members of selective distribution system.
- The fourth exception: sales of components.
- Measures obstructing parallel imports.
- Financial disincentives for dealers who export.
- Other indirect measures preventing parallel imports.
- Restrictions relating to export to or import from non-Member States.
- Export bans at dealer level.
- Measures aimed at monitoring and identifying the source of parallel imports.
- (iii) Restrictions on supplies of components
- (d) Excluded restrictions
- (e) Withdrawal and disapplication
- 4 Exclusive Distribution and Supply Agreements
- (a) Generally
- (b) Restrictions on sales outside the exclusive grant
- (c) Individual assessment of exclusive arrangements under Article 101
- General approach.
- Effects of exclusive distribution, customer allocation and supply under Article 101(1).
- Effects on intra-brand competition.
- Effects on inter-brand competition.
- Facilitating collusion or price discrimination.
- Exclusive distribution combined with other restrictions.
- Agreements between competing undertakings.
- Positive effects of exclusive distribution under Article 101(3).
- Positive effects of exclusive customer allocation and exclusive supply under Article 101(3).
- Upfront access payments.
- (d) Other common clauses in exclusive agreements
- Resale price maintenance.
- Restrictions as to persons to whom goods may be resold.
- Restrictions on end purpose of resale.
- Exchange of information between supplier and distributor.
- Advertising and promotion.
- Packaging, presentation and trade marks.
- Complete range and stocking obligations.
- Provision of supporting services and guarantees.
- Termination for breach.
- 5 Selective Distribution Systems
- (a) Generally
- (b) The principles established by the EU Courts
- The Metro principles.
- Networks falling outside Article 101(1).
- The nature of the products: objective technical requirements.
- The nature of the products: luxury and prestige products.
- Qualitative criteria.
- Exclusion of e-tailers from the network.
- Prohibiting internet sales by authorised resellers.
- Prohibiting authorised resellers from using non-authorised third-party online platforms.
- Quantitative restrictions.
- Procedure for admission to the selective distribution network.
- Effect of refusal of admission to network.
- Cumulative effects.
- (c) The application of the block exemption
- Application of Regulation 330/2010.
- Restrictions on resale to unauthorised distributors.
- Hardcore restrictions: resale to end-users or other authorised distributors.
- Hardcore restrictions: resale price maintenance.
- Selective distribution and exclusive distribution in the same territory.
- Selective distribution and exclusive distribution in different territories.
- Selective distribution and exclusive customer allocation.
- Selective distribution and non-compete obligations.
- (d) Individual assessment of selective distribution under Article 101
- 6 Motor Vehicle Distribution and Servicing
- Legal background.
- Regulation 461/2010.
- Commission guidance on motor vehicle distribution.
- Scope of application of Regulation 461/2010.
- Incorporation of terms into contract: transparency.
- (a) Distribution of new motor vehicles
- In general.
- Market share threshold.
- Excluded restrictions: non-compete restrictions.
- Non-compete obligations: definition.
- Networks of non-compete obligations.
- Selective distribution agreements for new motor vehicles.
- Hardcore restrictions in selective distribution.
- Exclusive distribution.
- Restrictions on resale prices.
- Combining different forms of distribution.
- (b) Repair of motor vehicles and distribution of spare parts
- Regulations 330/2010 and 461/2010.
- Protection of independent repairers and intra-network competition.
- The availability of spare parts.
- Single branding obligations in repair/servicing agreements.
- Decision withdrawing the block exemption.
- Regulation disapplying Regulation 461/2010.
- Remedies for excluded dealers.
- 7 Exclusive Purchasing, Single Branding and Tying
- (a) Definitions
- (b) Assessment of exclusive purchasing and non-compete obligations
- Wide market analysis required under Article 101.
- Application of the block exemption.
- Application of Article 102.
- (i) The cumulative effect of individual agreements
- (ii) Regulation 330/2010: duration of the restraint
- (iii) Economic effects of exclusive purchasing and single branding
- Negative effects of single branding under Article 101(1).
- Negative effects of exclusive purchasing under Article 101(1).
- Positive effects under Article 101(3).
- Particular efficiencies achieved.
- Article 101 and tying agreements.
- Long-term supply agreements.
- Intermediate and final products.
- Combination with other vertical restraints.
- 8 Franchising Agreements
- (a) Generally
- (b) Application of Article 101(1) to franchise agreements
- (c) Regulation 330/2010 and franchise agreements
- (d) Individual application of Article 101(3) to franchise agreements
- 9 Agency Agreements
- Introduction.
- Market for the provision of agency services.
- Agent acting for more than one principal.
- Market for the distribution of the principal’s products.
- Financial or commercial risk.
- Types of risk.
- Terms and conditions falling outside Article 101(1).
- Agent also acting on own account.
- Application of the block exemption.
- Cartels facilitated by agents.
- 10 Subcontracting
- Generally.
- The Subcontracting Notice.
- Additional provisions which may fall outside Article 101(1).
- Unacceptable restrictions.
- Application of Regulation 330/2010: licensing of IPRs.
- Application of Regulation 330/2010 where IPRs are licensed.
- Availability of components and spare parts.
- Application of Article 101(3) in an individual case.
- Approval of subcontractors.
- 11 Waste Packaging Recycling Arrangements
- 8 Merger Control
- Preliminary Material
- 1 Introduction
- (a) Summary
- The Merger Regulation.
- Concentrations.
- Allocation of jurisdiction over concentrations.
- Procedure for reviews under the Merger Regulation.
- Commission’s powers of investigation and sanction.
- Legal framework for assessment of concentrations.
- Substantive assessment of concentrations.
- Judicial review by the EU Courts.
- Application of Articles 101 and 102 in the field of mergers.
- National merger control and international cooperation.
- (b) Implementing Regulation and Commission Notices
- (c) Case law and statistics
- (a) Summary
- 2 Concentrations
- (a) Operations resulting in a concentration
- (i) In general
- (ii) Mergers
- (iii) Acquisitions of control
- (iv) Sole control
- (v) Joint control
- (vi) Changes in the quality of control
- (vii) Interrelated transactions
- (viii) Specific operations that are not concentrations
- (b) Operations resulting in a full-function joint venture undertaking
- (a) Operations resulting in a concentration
- 3 Allocation of Jurisdiction over Concentrations
- (a) Overview of ‘one-stop shop’ principle
- (b) EU dimension
- (i) Jurisdictional criteria
- (ii) Turnover calculation
- (iii) Undertakings concerned
- (iv) Identification of a ‘group’ for purpose of calculating turnover
- (c) Pre-notification reallocation of jurisdiction
- (d) Post-notification reallocation of jurisdiction
- (e) National investigations on grounds other than competition
- 4 Procedure for Reviews under the Merger Regulation
- (a) In general
- (b) Initial Phase I investigation
- (c) In-depth Phase II investigation
- (i) Phase II process
- Formal steps in investigation.
- Duration of Phase II investigation.
- Suspension of Phase II time period.
- Rights of defence generally.
- State of play meetings.
- Triangular meetings.
- Statement of objections.
- Notifying parties’ access to file and key documents.
- Access to file by other involved parties and third parties.
- Reply to statement of objections.
- Oral hearing.
- (ii) Additional Commission checks and balances
- (iii) Role of Member States
- (iv) Possible outcomes at Phase II
- (i) Phase II process
- (d) Commitments to enable clearance
- (e) Changes to or delays in implementing concentration
- 5 Commission’s Powers of Investigation and Sanction
- 6 Legal Framework for Assessment of Concentrations
- 7 Substantive Assessment of Concentrations
- (a) General context of assessment
- (b) Unilateral effects
- (e) Coordinated effects
- (f) Vertical and conglomerate effects
- (g) Other considerations relevant to substantive assessment
- (i) Buyer power
- (ii) Efficiencies
- (iii) Failing firm defence
- 8 Judicial Review by the EU Courts
- 9 Application of Articles 101 and 102 in the Field of Mergers
- 10 National Merger Control and International Cooperation
- 9 Intellectual Property Rights
- Preliminary Material
- 1 Introduction
- 2 Free Movement and Intellectual Property Rights
- Generally.
- Article 34 TFEU.
- Article 36 TFEU.
- (a) Specific subject-matter of intellectual property rights
- (b) The right of production or reproduction
- (c) The right of distribution
- Placing on the market for the first time.
- Patents.
- Trade marks.
- Copyright: goods.
- (i) Exhaustion of the distribution right
- (ii) Conditions for the exhaustion of the distribution right
- (d) The right to protect reputation
- (e) The exclusive right to provide services
- Exploitation of rights by provision of service.
- Rental rights.
- Public performance.
- Communication to the public.
- Exhaustion of rights: Coditel (No. 1).
- Exhaustion of rights: preliminary ruling in Football Association Premier League.
- Exhaustion of rights: national litigation after Football Association Premier League.
- Coditel (No. 1) and Football Association Premier League distinguished.
- (f) Article 36 TFEU: arbitrary discrimination
- 3 Articles 101 and 102 and the Enforcement of Intellectual Property Rights
- 4 Collective Licensing of Intellectual Property Rights
- 5 Licensing Intellectual Property Rights
- (a) Introduction
- Generally.
- Positive effects of licences on competition.
- Limited licence theory.
- Technology Transfer Guidelines.
- Safe harbour.
- Factors relevant to the application of Article 101.
- Intra-technology and inter-technology competition.
- Competing and non-competing undertakings.
- Determining the competitive relationship.
- Development of competition after conclusion of the agreement.
- Reciprocal and non-reciprocal licences.
- Licensing different types of intellectual property right.
- (b) Typical clauses in licensing agreements
- Introduction.
- (i) Clauses concerning royalties
- (ii) Clauses concerning the grant of exclusive territories
- Types of licences.
- Exclusive grant to non-competitors: open exclusivity.
- Exclusive grant to non-competitors: absolute territorial protection.
- Reciprocal exclusive licensing between competitors.
- Sales restrictions on the licensor.
- Exploitation by licensee in the territory of the licensor.
- Manufacture or use by licensee outside the licensed territory.
- Restrictions on direct sales by licensee into territory of another licensee.
- Parallel traders.
- Customer restrictions.
- (iii) Restrictions concerning the licensee’s production of goods
- Restrictions on output in licence.
- Captive use restrictions in licence between competitors.
- Captive use restrictions in licence between non-competitors.
- Field of use or restrictions in licence between competitors.
- Field of use or product market restrictions in licence between non-competitors.
- Minimum quality.
- Minimum quantities.
- Handling competing products or technologies.
- Prices.
- Obligation on licensee to use licensor’s get-up.
- (iv) Restrictions concerning the licensee’s provision of services
- (v) Other restrictions on the licensee
- (vi) Obligations extending after expiry of the licence or of the rights
- (a) Introduction
- 6 The Block Exemption for Technology Transfer Agreements
- (a) Introduction
- (b) Relationship between Regulation 316/2014 and other block exemptions
- (c) The scope of Regulation 316/2014
- (d) Market share thresholds
- (e) Hardcore restrictions
- Hardcore restrictions: competing and non-competing undertakings.
- Hardcore restrictions and competing undertakings.
- Restrictions on price setting between competing undertakings.
- Price-fixing in cross-licences.
- Output limitations: reciprocal and non-reciprocal agreements between competing undertakings.
- Market allocation and competing undertakings.
- Field of use restrictions between competing undertakings.
- Territorial restrictions between competing undertakings.
- Customer group restrictions between competing undertakings.
- Restrictions on use and development of technology between competing undertakings.
- Hardcore restrictions and non-competing undertakings.
- Price restrictions between non-competing undertakings.
- Restrictions on sales by licensor in agreement between non-competing parties.
- Restriction on active sales by non-competing licensee.
- Restriction on passive sales by non-competing licensee.
- Captive use restrictions between non-competing undertakings.
- Restrictions on sales to end-users between non-competing parties.
- Restrictions in a selective distribution network.
- (f) Excluded restrictions
- (g) Withdrawal of the block exemption
- 10 Article 102
- Preliminary Material
- 1 Introduction
- (a) Generally
- Article 102.
- Article 102 and the internal market.
- Scope of Article 102.
- The Commission’s Article 102 Enforcement Priorities Guidance.
- Constituent elements of Article 102.
- Undertakings: imputation of subsidiary’s conduct to parent.
- A substantial part of the internal market.
- The need to demonstrate both dominance and abuse.
- Link between dominant position and abuse.
- (b) Relationship between Article 102 and other competition rules
- (a) Generally
- 2 Dominant Position
- (a) Generally
- (b) The market position of the undertaking itself and its competitors
- Market share as an indicator of dominance.
- Caution about market shares.
- Measurement of market shares.
- Market share levels.
- Market shares of competitors.
- Stability of market shares.
- Market shares on bidding markets.
- Market shares indicating dominance.
- Overall size and strength.
- Incumbency and ‘first mover advantage’.
- (c) Barriers to entry and expansion
- Generally.
- Barriers to entry and definition of the relevant market.
- Economies of scale and fixed costs.
- Technical barriers.
- Ownership of intellectual property or other monopoly rights.
- Patents can be a barrier to entry.
- Trade marks can be a barrier to entry.
- Copyright can be a barrier to entry.
- Structural barriers: vertical integration.
- Structural barriers: rights over land and ownership of property.
- Strategic barriers: conduct as evidence of dominance.
- Advertising, branding and reputational effects.
- (d) Countervailing power
- (e) Appraisal of market power in more complex cases
- (f) Collective or joint dominance
- Generally.
- Adoption of common conduct on the market.
- Relationship between collective dominance and anti-competitive agreements.
- Agreements establishing a collective entity.
- Collective dominance of members of an association of undertakings.
- Market structures that enable undertakings to act together as a collective entity.
- 3 Abuse of a Dominant Position
- (a) Introduction
- (b) Some basic concepts
- The ‘special responsibility’ of dominant firms.
- Exclusionary strategy or intention to eliminate a competitor.
- Abuse ‘by object’: departure from competition on the merits.
- Abuse ‘by effect’: role of exclusionary effects.
- Direct or indirect effects on consumers.
- Effect of pricing practices on as efficient competitors.
- Appreciable effects.
- No need to derive a commercial advantage from the alleged abuse.
- Possibility of objective justification.
- Principle of proportionality.
- Efficiency defence.
- Exclusionary and exploitative abuses.
- Own market and related market abuses.
- Abuses considered in this Section.
- Case-by-case assessment.
- (c) Own market abuses
- Exclusionary and exploitative abuses on the dominated market.
- Categories of exclusionary pricing.
- (i) Predatory pricing
- Predatory pricing.
- Price competition on the merits.
- Measures of cost.
- Legal test.
- Refinement of the legal test.
- Assessment of variable costs in predatory pricing.
- Other measures of cost.
- Plan or intention to eliminate a competitor.
- Potential for recoupment of losses.
- Objective justifications for below-cost pricing.
- Alignment of prices with the competition.
- (ii) Price discrimination and selective discounting
- Price discrimination or targeting.
- Selective undercutting of competitor: the rationale for intervention.
- Article 102(c).
- Identifying equivalent transactions.
- Competitive disadvantage.
- Competitive disadvantage in practice.
- Different prices to different groups of buyer.
- Price discrimination on grounds of nationality.
- Discrimination that harms consumers.
- Objective justification.
- (iii) Fidelity rebates and similar practices
- Fidelity rebates, discounts and similar practices.
- Analytical framework: exclusionary effect and objective justification.
- Analytical framework: the role of the as efficient competitor test.
- Quantity rebates.
- Fidelity rebates.
- Turnover-related discounts.
- Turnover-related bonuses.
- Individualised, retroactive quantity rebates.
- Standardised, stepped discount schemes.
- Discreationary discounts.
- Multi-product rebates.
- Objective justification.
- Fidelity rebates in national courts.
- Exclusive dealing.
- Long-term agreements.
- De facto exclusive dealing: discretion to allow purchases from others.
- De facto exclusive dealing: cabinet exclusivity.
- Product swaps.
- (v) Excessive pricing
- Unfairly high prices.
- Need to assess the relationship between the price and the economic value of the product.
- The United Brand questions.
- There is no single method for determining whether a price is excessive.
- United Brands question 1: is the price excessive?
- Economic value of the product.
- United Brands question 2(a): is the price unfair in itself?
- United Brands question 2(b): is the price unfair when compared to competing products?
- Price is appreciably higher than prices in other Member States.
- Justificiation of significant and persistent price differentials.
- (d) Related market abuses
- (i) Generally
- (ii) Margin squeeze
- Margin squeezing is an independent abuse.
- Margin squeeze: the applicable costs test.
- Margin squeeze can be an abuse only if it leads to anti-competitive effects.
- Circumstances in which margin squeeze is likely to lead to anti-competitive effects.
- Margin squeeze: irrelevant considerations.
- Margin squeeze: objective justification.
- National cases on margin squeezing.
- Margin squeezing: remedies.
- Cross-subsidisation as a distinct form of abuse?
- (iii) Exclusionary non-price practices on related markets
- (iv) Tying and bundling
- Generally.
- ‘Pure’, ‘technical’ and ‘mixed’ bundling.
- Necessary conditions for a finding of abusive tying.
- There must be separate tying and tied products.
- Consumables tied with machinery.
- Tying of other ancillary services.
- Pre-installation of applications on mobile operating systems.
- Coercion.
- Tying or bundling must be capable of having an anti-competitive effect.
- Objective justification of tying practices.
- (v) Refusal to supply
- Generally.
- Structure of this Section.
- Constructive refusal to supply.
- Discontinuing the supply of goods to an existing customer.
- Effect of the refusal to supply on the downstream market.
- Objective justification for refusing to supply an existing customer.
- Refusal to supply new customers.
- Essential facilities.
- Access to essential facilities.
- The criterion of ‘necessity’ in the context of refusal to supply.
- Likely effect of a refusal to supply on consumer welfare.
- Dominant undertaking’s presence in the downstream market.
- Objective justification for refusal to supply a new customer.
- Refusal to satisfy demand generated by parallel trade.
- (e) Other forms of abuse
- Generally.
- Unfair trading conditions.
- Unfair trading conditions in industrial supply agreements.
- Unfair trading conditions imposed by a collective agreement or as standard industry practice.
- Price, business model and promotion parity provisions.
- Contractual restrictions on the display of competing advertisements.
- Limiting production, markets or technical development.
- Abusive alteration of the structure of the market.
- Inefficiency as an abuse.
- Preferential treatment of a dominant firm’s own products.
- Abusive use of litigation.
- Discrimination on grounds of nationality and restrictions on parallel trade.
- Abuse by sporting bodies.
- 11 The Competition Rules and the Acts of Member States
- Preliminary Material
- 1 Introduction
- 2 State Compulsion
- 3 The Application and Enforcement of the Prohibition in Article 106(1)
- In general.
- Application in conjunction with Treaty provisions.
- Public undertakings.
- Undertakings granted special or exclusive rights.
- Special and exclusive rights.
- Measures of the Member State.
- The grant of special or exclusive rights can itself be a measure.
- Link between the measure and the breach by the undertaking.
- Inability to satisfy demand.
- Extension of dominance into neighbouring markets.
- Creation of conflict of interest.
- Fee tariffs.
- Inequality of opportunity.
- Discrimination.
- Effect of Article 106(1) on undertakings.
- Enforcement: Article 106(3).
- Commission’s discretion as to enforcement.
- Decisions.
- The power to legislate under Article 106(3).
- The Transparency Directive.
- 4 Unenforceability of National Measures: Article 4(3) TEU
- The duty not to jeopardise Union objectives.
- Article 4(3) TEU in conjunction with Article 101 TFEU.
- Requiring or favouring the adoption of an anti-competitive agreement or reinforcing its effects.
- Delegating collective decisions concerning interaction in economic matters.
- Narrow application of Article 101 read together with Article 4(3) TEU.
- Direct effect of Article 4(3) TEU.
- Duty of national competition authorities to apply Articles 101 TFEU and 4(3) TEU.
- 5 State Monopolies of a Commercial Character: Article 37
- Article 37(1).
- Article 37 and the free movement of goods.
- Relationship between Article 37 and Article 34.
- State monopoly of a commercial character.
- Monopolies for import and export.
- Extent of prohibition under Article 37(1) for other monopolies.
- Application of Article 37 after Franzén.
- Standstill provision: Article 37(2).
- Agricultural products: Article 37(3).
- Remedies.
- 6 Derogations under Articles 106(2) and 346
- (a) Article 106(2) TFEU: services of general interest
- In general.
- The relevant Treaty rules.
- Article 106(2) and State aids.
- 2012 SGEI Decision.
- Assessment under Article 106(2) and the Altmark criteria.
- The act of entrustment.
- Definition of terms: SGIs and SGEIs.
- Member States’ discretion in defining SGEIs.
- Universality of SGEI provision.
- Activities which are SGEIs.
- Activities which are not SGEIs.
- Undertakings having the character of a revenue-producing monopoly.
- Obstructing the performance of the tasks.
- The Dutch Sectoral Pension Funds cases.
- The ‘tailpiece’: adverse development of trade.
- Article 106(2) and proportionality.
- Article 106(2) in national courts.
- (b) Article 346 TFEU: military equipment
- (a) Article 106(2) TFEU: services of general interest
- 12 Sectoral Regimes
- Preliminary Material
- 1 Introduction
- 2 Electronic Communications
- (a) Regulatory framework
- A ‘dynamic’ regulatory regime.
- Overview of the 2002 common regulatory framework.
- Revised regulatory framework.
- Scope of the regulatory framework.
- (i) Framework Directive
- Harmonisation.
- Obligations on NRAs.
- Technology and service neutrality.
- Exclusion of content regulation.
- Derogations.
- Imposition of regulatory obligations on undertakings.
- Ex ante conditions on operators with SMP.
- Meaning of ‘effectively competitive’ and SMP.
- SMP requires a ‘prospective’ analysis.
- The Recommendation on Relevant Markets.
- The SMP Guidelines.
- SMP conditions.
- SMP conditions: wholesale price controls.
- SMP conditions: functional separation and retail price controls.
- Commission’s review of SMP designations.
- Commission’s review of remedies imposed by NRAs.
- (ii) Access Directive
- (iii) Authorisation Directive
- (iv) Universal Service Directive
- (v) Directive on competition in the market for ECNs and ECSs
- (vi) Regulation establishing BEREC
- (vii) Overview of radio spectrum policy
- (viii) Regulation of international mobile roaming
- (ix) Facilitating high-speed broadband roll-out
- (ix) Network neutrality
- (viii) Ongoing policy developments
- (b) Application of competition law
- (i) Generally
- (ii) Relationship between competition rules and sector-specific regulation
- (iii) Application of Article 101
- Prevalence of agreements.
- Restrictive agreements.
- Price agreements.
- CEPT.
- Agreements on conditions other than price.
- Agreement on technical and quality standards.
- Agreements on standards and Article 101.
- Interplay between agreements on standards and intellectual property rights.
- Agreements on information exchange.
- Mobile telecommunications: 3G network sharing.
- Network sharing agreements.
- Mobile telecommunications: reciprocal national roaming arrangements.
- Discriminatory treatment.
- Risks of foreclosure.
- Research and development agreements.
- Joint distribution.
- (iv) Joint ventures and mergers
- Background.
- Joint venture decisions under Article 101.
- JV to operate as full service telecommunications provider.
- Mergers and full-function joint ventures.
- Mergers in the fixed communications sector.
- Mergers in the mobile communications sector.
- Mergers leading to a reduction in the number of competing mobile operators.
- Mergers between fixed and mobile communications operators.
- (v) Application of Article 102
- Article 102: significance in the communications sector.
- The Commission’s guidance.
- Dominance in the telecommunications sector.
- Collective dominance.
- Types of abuse.
- Restricting activities of competitors.
- Refusal to supply.
- Obligation to licence standard essential patents.
- Supplying on discriminatory terms.
- Imposing unreasonable restrictions on customers.
- Predatory behaviour.
- Tying and bundling.
- Other methods of extending dominance into neighbouring markets.
- Excessive pricing.
- Margin squeeze.
- Examples of margin squeeze.
- Abuses of a dominant purchasing position.
- (vi) Application of Article 106
- (a) Regulatory framework
- 3 Energy
- 4 Insurance
- (a) Regulatory framework
- (b) Application of the competition rules
- Generally.
- Insurance Block Exemption.
- Product market definition.
- Geographic market definition.
- Information exchanges: joint compilations, tables and studies.
- Standard policy conditions.
- Co-(re)insurance pools.
- Standardisation agreements.
- Insurance intermediaries.
- Commission inquiry into the insurance markets.
- Member States’ inquiries into the insurance markets.
- 5 Financial Services
- (a) Regulatory framework
- (b) Application of competition law
- 6 Postal Services
- 7 Agriculture
- 8 Transport
- 1 Competition Law and Policy in the EU