Users without a subscription are not able to see the full
content. Please,
subscribe
or
login
to access all content.
Contents
- Preliminary Material
- Main Text
- 1 Introduction to Competition Law
- 2 Introduction
- 3 The Economics of Competition Law
- A Basic Concepts of Welfare Economics
- B Perfect Competition and Efficiency
- C Monopoly
- D Oligopoly
- E Perfect Competition, Monopoly, Market Power, and Competition in the Real World
- F The Concept of Welfare: Total (Social) Welfare, Consumer Welfare, and Efficiency Trade-Offs
- G Dynamic Competition and Schumpeterian Rivalry
- 4 Schools of Competition Analysis and Theories and Concepts Relevant to Competition Law
- A The Structure → Conduct → Performance Paradigm and the Harvard School
- B The Chicago School, Post-Chicago, and Neo-Chicago
- (i) The Chicago School
- H. Hovenkamp, ‘Antitrust Policy After Chicago’ [1985] 84 Univ Mich LR 213, 226–229
- R. H. Bork, The Antitrust Paradox: A Policy at War with Itself (Basic Books, 1978, reprinted with a new Introduction and Epilogue, 1993), 90–91
- R. H. Bork, The Antitrust Paradox: A Policy at War with Itself (Basic Books, 1978, reprinted with a new Introduction and Epilogue, 1993), 426–429
- (ii) Post-Chicago
- (iii) Neo-Chicago
- (iv) Conclusion
- J. D. Wright, ‘Abandoning Antitrust’s Chicago Obsession: The Case for Evidence-Based Antitrust’ (2012) 78 Antitrust LJ 241, 270–271
- William E. Kovacic, ‘The Intellectual DNA of Modern U.S. Competition Law For Dominant Firm Conduct: The Chicago/Harvard Double Helix’ [2007] 1(1) Columbia Business LR 8–10
- (i) The Chicago School
- C Game Theory
- D Behavioural Antitrust
- E Raising Rivals’ Costs
- F Transaction Cost Economics
- G Workable Competition
- H Contestable Markets Theory
- I The Austrian School
- J Effective Competition
- 5 Ordoliberalism
- 6 The Possible Goals and Values of Competition Law
- A General
- B Economic Efficiency and Welfare
- C Protection of Economic Freedom and the Dispersal of Economic Power
- D Protecting the Competitive Process or Protecting Competition
- E Protecting Competitors
- F Fairness
- G Equality and Redistribution
- H Other Public Policies, and the ‘Public Interest’
- I The EU Dimension of the Single Market
- J Conclusion
- 7 US Antitrust Law
- 8 EU Competition Law
- A The Objectives of the EU and the Role of the Competition Rules
- B The Objectives of EU Competition Law
- 9 The Application of EU Competition Law
- 10 The Digital Economy
- 11 EU Competition Law and Regulation
- 12 Competition Law and the International Context
- 13 Conclusions
- 14 Further Reading
- 2 The Competition Law and Institutions of the European Union
- 2 Introduction
- 3 Introduction to the European Union
- A The European Union and the European Community
- B The EU Treaties
- C The Non-Judicial EU Institutions
- D EU Legislative and Other Acts
- E The EU Courts
- F General Principles of EU Law and Fundamental (Human) Rights
- 4 The Competition Provisions
- 5 Communications and Notices
- 6 The Competition Rules and the European Economic Area
- 7 Modernisation
- 8 Conclusions
- 9 Further Reading
- 3 Market Power, Market Definition, and Barriers to Entry
- 2 Introduction
- 3 Market Power
- 4 Market Definition and EU Competition Law
- A The Purpose of Market Definition
- B The Definition of the Relevant Market
- C The Commission Notice on the Definition of the Relevant Market for the Purposes of EU Competition Law
- D Demand and Supply Substitution
- E Demand Substitution
- F Supply Substitution
- G Particular Issues in Market Definition
- (i) Chains of Substitution
- (ii) Distinct Groups of Customers and Price Discrimination
- (iii) The Structure of Supply and Demand
- (iv) One Market or Two?
- (v) Aftermarkets
- (vi) Markets for Raw Materials and ‘Inputs’
- (vii) Markets Created by State Regulation
- (viii) Markets in the Digital Economy
- (ix) Multi-Sided Markets
- (x) Markets in the Pharmaceutical Sector
- (xi) Markets on the Buying Side
- H The Geographic Market
- I The Temporal Market
- 5 Barriers to Entry and Expansion
- 6 Conclusions
- 7 Further Reading
- 4 Article 101 TFEU: The Elements
- 2 Introduction
- 3 The Text and Scheme of Article 101
- 4 The Interpretation and Application of Article 101(1)
- A ‘Undertaking’ and ‘Associations of Undertakings’
- (i) Every Entity Engaged in an Economic Activity
- (ii) The Legal Status or Form or the Entity is Immaterial
- (iii) Distinguishing Economic Activity from Functions Which Are Not Economic
- (iv) The Notion of an Undertaking is a Relative Concept
- (v) Employees and Trade Unions
- (vi) Summary
- (vii) Single Economic Units
- a The undertaking as a Single Economic Unit—Natural Persons, Legal Persons, Principal–Agent and Parent–Subsidiary Relationships
- b Consequences of the Single Economic Unit Doctrine
- c The Boundaries of the Economic Unit: Parent and Subsidiary
- d The Boundaries of an Economic Unit: A Single Concept and Proper Basis for Parental Liability?
- e The Boundaries of the Economic Unit on a Dynamic Basis
- (viii) Associations of Undertakings
- B The Meaning of ‘Agreement’, ‘Decision’, and ‘Concerted Practice’
- (i) Introduction
- (iii) Agreement
- a A Concurrence of Wills
- b Agreements between Undertakings Operating at Different Levels of the Economy or in Separate Markets
- c Collective Bargaining Agreements
- d Participation in Meetings—Passive Participation in an Agreement and the Anic Presumption
- e Vertical Agreements and Unilateral Conduct
- f Hub and Spoke Arrangements
- g Recommendations by Bodies Constituted under Statutory Powers
- (iv) Concerted Practices
- a Description of a Concerted Practice
- b The Need for Concertation, Conduct (Implementation), and a Relationship of Cause and Effect Between the Two
- c Direct Contact—Frequent or Isolated Exchanges, or Disclosure, of Information
- d Indirect Contact/Sharing of Information and Hub and Spoke Arrangements
- e Parallel Behaviour, Price Signalling, and Online Exchanges
- f Concerted Practice and Vertical Arrangements
- (v) Decisions by Associations of Undertakings
- (vi) Complex Arrangements and Single Infringements
- C Object or Effect of the Prevention, Restriction, or Distortion of Competition
- D An Appreciable Effect on Competition and Trade
- E An Appreciable Effect on Trade Between Member States
- (i) Jurisdictional Limit
- (ii) The Tests
- (iii) Pattern of Trade Test
- (iv) An Increase in Trade
- (v) Partitioning of the Internal Market
- (vi) Agreements Operating in One Member State
- (vii) Restrictions on Competition and Restrictions on Trade
- (viii) Agreements which Appreciably Affect Trade between Member States
- (ix) The Relationship Between EU and National Law
- F Agreements Required by National Legislation or Encouraged by National Governments
- G Commission Notices
- H Extraterritoriality
- A ‘Undertaking’ and ‘Associations of Undertakings’
- 5 Article 101(2)
- 6 Exclusions
- 7 Conclusions
- 8 Further Reading
- 5 Article 101 TFEU: Substantive Appraisal
- 2 Introduction and Background
- 3 Article 101(1), Agreements Which Have as Their Object or Effect the Prevention, Restriction, or Distortion of Competition
- A Object or Effect
- B Agreements that Restrict Competition by Object: Restraints Which Reveal a Sufficiently Deleterious Impact on Competition
- (i) Identifying the Category of Object Restraints
- (ii) Content—Restrictive Clauses in the Agreement
- (iii) The Importance of Context in Identifying the Purpose or Objective of the Agreement
- (iv) The Objective of the Agreement and the Context in Which it Operates: Expanding the List of Object Restraints
- (v) The Objective of the Agreement and the Context in Which it Operates: Narrowing the List of Object Restraints
- (vi) Object Restraints, Market Structure, and Market Power
- (vii) Object Cases and Appreciability
- (viii) Restrictions by Object and ‘Hardcore’ Restraints
- C Agreements That Do Not Restrict Competition by Object: Analysing Their Effects
- (i) General
- (ii) Appraisal of an Agreement in its Legal and Economic Context
- (iii) Is the agreement likely to enable the parties to exercise market power?
- (iv) Restraints on Competition between a Supplier’s Distributors (Intra-brand Competition)
- (v) Ancillary Restraints
- (vi) Restraints Inherent in the Pursuit of a Legitimate (Public Policy?) Objective: Wouters and Meca-Medina
- (vii) Appreciability
- D Conclusions and Reflections on Article 101(1) Analysis
- 4 Article 101(3)
- A Application of Article 101(3)
- B Burden and Standard of Proof
- C Any Agreement May in Principle Benefit from Article 101(3)
- D The Article 101(3) Criteria
- (i) Criterion 1: The Agreement Must Lead to an Improvement in the Production or Distribution of Goods or the Promotion of Technical or Economic Progress
- (ii) Criterion 2: Allowing Consumers a Fair Share of the Resulting Benefit
- (iii) Criterion 3: Indispensable Restrictions
- (iv) Criterion 4: The Agreement Must Not Afford the Parties the Possibility of Eliminating Competition
- E Block Exemptions
- F Unilateral Action and Article 101(3)
- 5 Conclusions
- 6 Further Reading
- 6 Article 102 TFEU: Introduction and Dominant Position
- 2 Introduction
- 3 The Text and Scheme of Article 102
- 4 Interpretation and Application of Article 102
- A The Meaning of One or More Undertakings
- B A Dominant Position
- C A Dominant Position Within a Substantial Part of the Internal Market
- D Abuse
- E An Effect on Trade Between Member States
- 5 The Review of Article 102
- 6 The Relationship Between Article 102 and Article 101
- 7 The Concept of Dominance
- 8 Market Definition in Article 102 Cases
- A General
- B The Product Market
- (i) Demand Substitution
- a Substitutability
- b The United Brands Case
- c The Michelin Case
- d The France Télécom Case
- e Chains of Substitution and Products with Multiple Applications
- f The Structure of Supply and Demand
- g One Product or Market or Two
- h Primary and Secondary Markets (Aftermarkets)
- i Markets for Raw Materials and Inputs
- j Markets on the Buying Side (Procurement Markets)
- (ii) Supply Substitution
- (iii) Product Markets in the Digital Economy
- (i) Demand Substitution
- C The Geographic Market
- D The Temporal Market
- 9 Assessing Market Power
- A General
- B Market Shares
- C Other Factors Indicating Dominance and Barriers to Entry
- (i) General
- (ii) Indications from the Undertaking
- (iii) Barriers to Entry and Expansion
- (iv) Summary of Barriers to Entry for the Purposes of Article 102
- a Economies of Scale and Scope and Sunk Costs
- b Access to Key Inputs or Facilities
- c Access to Financial Resources and the Need for Investment
- d Legal and Regulatory Barriers and Intellectual Property Rights
- e Superior Technology
- f Established Distribution and Sales Networks
- g Vertical Integration
- h Advertising, Reputation, Product Differentiation
- i Opportunity Costs
- j Switching Costs
- k Network Effects and Multi-sided Markets
- l Conduct
- m An Unavoidable Trading Partner
- D Countervailing Buyer Power
- 10 Conclusions
- 11 Further Reading
- 7 Article 102 TFEU: Conduct Which Can Be an Abuse
- 2 Introduction
- 3 The Meaning of Abuse
- A General
- B Types of Abuse Covered by Article 102 TFEU
- C Article 102 Covers Exploitative and Exclusionary Abuses
- D The Broad Nature of the Concept of Abuse
- E Exclusionary Abuses: Distinguishing Illegitimate from Legitimate Conduct
- F Form- and Effects-Based Analysis
- G Appreciability
- 4 The Commission’s Approach to Exclusionary Abuses in the Guidance Paper: The ‘Anti-Competitive Foreclosure’ Concept
- 5 Objective Justification, Efficiency, and Other Defences
- 6 Dominance and Abuse on Different Markets: ‘Leveraging’ of Market Power as a Theory of Harm
- 7 General Issues in Respect of Abuses Concerning Prices
- 8 Predatory Pricing
- A General
- B The Areeda–Turner Test
- C The Test Laid Down in AKZO
- D The Post Danmark I Case
- E The ‘Meeting Competition’ Defence and Predatory Pricing
- F Recoupment
- G Predatory Pricing in the Guidance Paper and the Sacrifice Principle
- H Predatory Pricing in New and Digital Economy Markets
- I Selective Above-Cost Pricing
- 9 Margin Squeeze
- 10 Exclusive Dealing: Exclusive Purchasing and Loyalty (-Inducing) Rebates
- A General
- B Exclusive Dealing: An Abuse ‘By Object’ or ‘By Effect’?
- C Exclusive Purchasing
- D Exclusive Distribution
- E Exclusivity and Loyalty (-Inducing) Rebates
- F Naked Restrictions
- 11 Tying and Bundling
- A General
- B The Commercial Rationale for Tying and Bundling
- C The Economic Arguments Over Tying and Bundling
- D Tying and Bundling and Article 102
- E The Case Law
- F Tying and Bundling in the Guidance Paper
- 12 Refusal to Supply
- A General
- B The Exclusion of Competitors from Downstream Markets
- C The Bronner Criteria and Their Evolution
- D Refusal to Supply and Intellectual Property Rights
- E Refusal to Supply and Interoperability—The Microsoft Case
- F Refusal to Supply ‘Big Data’
- G Refusal to Supply in Situations Not Involving Upstream/Downstream Markets
- H Refusal to Supply in the Guidance Paper
- I Refusal to Supply and the ‘Essential Facilities’ Doctrine in US Law
- 13 ‘Self-Preferencing’
- 14 Other Exclusionary Practices
- A General
- B Pursuit of Legal Proceedings, Vexatious Litigation, and Enforcing Legal Rights
- C ‘Regulatory Gaming’
- D ‘Forced Free-Riding’
- E The Acquisition of Intellectual Property Rights and/or Competing Technologies
- F Obstructing of Development and Distribution of Competing products: Google (Android)
- G Vertical and Horizontal Integration
- 15 Secondary Line Discrimination
- 16 Exploitative Abuses
- A Unfairly High or Low Pricing
- B Imposing Unfair Trading Conditions and Entering into Restrictive Agreements
- C Inefficiency and Limiting Production
- D Non-Compliance with Data Protection Obligations
- 17 Conduct Hindering Inter-Member State Trade
- 18 Abuse and Collective Dominance
- 19 Conclusions
- 20 Further Reading
- 8 Competition, the State, and Public Undertakings: Article 106 TFEU
- 2 Introduction
- 3 Article 4(3) TEU
- 4 Article 106
- 5 Article 106(1)
- A Definitions
- B Measures Forbidden by Article 106(1)
- C Summary of the Situations Which Infringe Article 106(1) in Conjunction With Article 102
- 6 Article 106(2)
- A The Institutional Setting of Services of General Economic Interest
- B The Concepts and Terminology of ‘Services of General Economic Interest’ and ‘Services of General Interest’
- C The Purpose of Article 106(2)
- D Undertakings Having the Character of a Revenue-Producing Monopoly
- E Undertakings Entrusted with the Operation of Services of General Economic Interest
- (i) ‘Undertakings Entrusted With . . .’
- (ii) Operation of Services of General Economic Interest
- (iii) Obstruct the Performance of the Particular Tasks Assigned to Them
- Case C-320/91, Corbeau EU:C:1993:198
- Case 157/94, Commission v Netherlands (Re Electricity Imports) EU:C:1997:499
- Case C-393/92, Gemeente Almelo and Others v Energiebedrijf Ijsselmij NV EU:C:1994:171
- Case C-266/96, Corsica Ferries France SA v Gruppo Antichi Ormeggiatori del Porto di Genova Coop and Others EU:C:1998:306
- Case C-67/96, Albany International BV v Stichting Bedrijfspensioenfonds Textielindustrie EU1999:430
- Case T-260/94, Air Inter v Commission EU:T:1997:265
- Case C-475/99, Ambulanz Glöckner v Landkreis Südwestpfalz EU:C:2001:577
- F No Effect on Trade Contrary to the Interests of the Union
- 7 Services of General Economic Interest and State Aid
- 8 The Direct Effect of Article 106(1) and (2)
- 9 Article 106(3)
- 10 Conclusions
- 11 Further Reading
- 9 Horizontal Agreements—Cartels and Collusion
- 2 Introduction
- A General
- B Cartels and Collusion—Explicit and Tacit
- (i) Cartels—Definition and Harm
- (ii) Tacit Collusion and the Oligopoly Problem
- C Competition Law and Collusion (Explicit and Tacit)
- 3 Cartels
- A Substantive Analysis Under Article 101
- (i) Cartels are Intrinsically Detrimental to the Competitive Process and Not Related to the Lawful Realisation of Efficiencies
- (ii) Price-fixing
- (iii) Buying Cartels, Wage-fixing, and No-Poach Agreements
- (iv) Output Restrictions
- (v) Market-sharing
- (vi) Collusive Tendering or Bid Rigging
- (vii) Bolstering Provisions
- B Proving a Breach
- A Substantive Analysis Under Article 101
- 4 Characterisation—Is it a Cartel?
- A Price and Output Restraints Ancillary or Necessary to Beneficial Collaboration?
- B Information-Sharing Agreements
- C Restrictions on Non-Price Trading Conditions, Advertising, and Promotion
- 5 Oligopoly and the Problem of Tacit Collusion
- 6 Conclusions
- 7 Further Reading
- 2 Introduction
- 10 Horizontal Cooperation Agreements
- 2 Introduction
- 3 Appraisal of Horizontal Cooperation and Joint Ventures: Evolution of Policy
- 4 Research and Development Agreements
- 5 Production Agreements
- 6 Purchasing Agreements
- 7 Commercialisation Agreements
- 8 Standardisation Agreements
- 9 Agreements in Particular Sectors
- 10 Conclusions
- 11 Further Reading
- 11 Vertical Agreements
- 2 Introduction
- A General
- B Methods of Distribution
- C Competition Rules and Distribution
- (i) The Impact of the Competition Rules on Methods of Distribution
- (ii) Intra-undertaking Arrangements: Vertical Integration and Agency Agreements
- (iii) Vertical Agreements
- 3 The EU Approach to Vertical Agreements—An Overview
- 4 Vertical Agreements and Article 101(1) of the Treaty
- A Restrictions by Object
- B Analysing the Restrictive ‘Effect’ of Vertical Agreements
- (i) Introduction
- (ii) Single Branding Agreements and Delimitis
- (iii) Exclusive Distribution Agreements and STM
- (iv) Selective Distribution Agreements and the Metro Criteria
- Case 26/76, Metro-SB-Grossmärkte GmbH v Commission (Metro I) EU:C:1977:167
- a The Characteristics or the Nature of the Product
- b Qualitative Not Quantitative Criteria Applied Uniformly, and in a Non-discriminatory Manner
- c The Criteria Must Not Go Beyond What is Necessary for the Product in Question
- d The Impact of the Pierre Fabre Judgment
- (v) Franchising Agreements and Pronuptia de Paris
- (vi) Tying
- (vii) Other Restraints
- (viii) Effects Analysis—The Need to Develop a Clearer Framework?
- 5 Article 101(3)
- A General
- B The Old Block Exemptions
- C The Verticals Regulation—Regulation 330/2010
- (i) The Background
- (ii) Article 1—Definitions
- (iii) Article 2—The Main Exemption
- (iv) Article 3—The Market Share Cap
- (v) Article 4—Hardcore Restrictions
- a The Block Exemption is Not Applicable to Vertical Agreements Containing Hardcore Restraints
- b Article 4(a): Fixed or Minimum Sales Prices
- c Article 4(b): Restrictions of the Territory or the Customers to Whom the Buyer May Sell
- d Articles 4(c) and 4(d): Restrictions in Selective Distribution Systems
- e Article 4(e): Restrictions on Suppliers of Components
- (vi) Article 5—Excluded Restraints: Severable, Non-exempted Obligations
- (vii) Withdrawal of the Block Exemption by the Commission or the National Competition Authorities
- (viii) Article 6—Non-application of the Regulation—Networks of Agreements
- (ix) Articles 7, 8, and 9—Market Share, Turnover, and Transitional Provisions
- (x) Article 10—Commencement, Expiry, and Review
- D The Motor Vehicle Distribution Block Exemption
- E Article 101(3)—Individual Assessment
- 6 Subcontracting Agreements
- 7 Article 102 and Distribution
- 8 Conclusions
- 9 Further Reading
- 2 Introduction
- 12 Licensing Agreements and Other Agreements Involving Intellectual Property Rights
- 2 Introduction
- A General
- B Types of Intellectual Property Rights
- C The Relationship Between Intellectual Property Rights and Competition Law
- S. D. Anderman and J. Kallaugher, Technology Transfer and the New EU Competition Rules: IP Licensing after Modernisation (Oxford University Press, 2006)
- A. Jones and R. Nazzini, ‘The Effect of Competition Law on Patent Remedies’ in B. Biddle, J. L. Contreras, B. J. Love, and N. V. Siebrasse (eds.), Patent Remedies and Complex Products: Toward a Global Consensus (Cambridge University Press, 2019)
- D The Relationship Between Intellectual Property Rights and the Free Movement Rules
- 3 Exploiting Intellectual Property Rights by Licensing
- A General
- B Commercial Considerations in Licences
- C Development of Competition Policy Towards Licensing of Intellectual Property Rights
- D The 2014 TTBER and the Technology Transfer Guidelines
- 4 Regulation 316/2014, the Technology Transfer Block Exemption
- A General
- B The Scheme of the TTBER
- C Principal Features of the TTBER
- D Scope of the TTBER
- E Safe Harbour: The Market Share Thresholds
- F Hardcore Restrictions
- G Excluded Restrictions
- H Withdrawal and Disapplication of the Block Exemption
- 5 The Application of Article 101 to Licensing Agreements Falling Outside the TTBER
- A General Principles
- B Specific Provisions
- 6 Trade Mark Licences
- 7 Trade Mark Delimitation Agreements
- 8 Copyright (Other Than Software) Licences
- 9 The Application of Article 102 to Intellectual Property Rights
- 10 Conclusions
- 11 Further Reading
- 2 Introduction
- 13 Public Enforcement by the Commission and the National Competition Authorities of the Antitrust Provisions
- 2 Introduction
- 3 Overview of the EU Enforcement Regime From May 2004
- 4 Modernisation and Regulation 1/2003
- A The Old Enforcement Regime Under Regulation 17
- B The Modernisation White Paper
- C Regulation 1/2003 and the Modernisation ‘Package’
- 5 The European Competition Network
- 6 The Best Practices Notice and the Manual of Procedures
- 7 Enforcement by the Commission
- A General
- B Fundamental Human Rights
- (i) General
- (ii) The Relevant Articles of the ECHR and the Charter
- a Article 6 ECHR and Article 47 of the Charter—Right to a Fair Trial
- b Article 6 ECHR and Article 48 of the Charter—The Presumption of Innocence
- c Article 7 ECHR and Article 49 of the Charter—Non-retroactivity and Proportionality of Criminal Offences and Penalties
- d Article 8 ECHR and Article 7 of the Charter—Privacy and the Inviolability of the Home
- e Article 20 and Article 21 of the Charter—Equality Before the Law and Non-discrimination
- f Article 41 of the Charter—Right to Good Administration
- g Article 50 of the Charter—Ne Bis in Idem
- C Complaints
- D The Investigation Stage of the Administrative Procedure: Fact-Finding by the Commission
- (i) General
- (ii) Article 18 Requests for Information
- (iii) Article 20 Inspections of Undertakings
- a General
- b The Powers of the Inspectors
- The Power to Enter Any Premises, Land, and Means of Transport of Undertakings and Associations of Undertakings (Article 20(2)(a))
- The Power to Examine Books and Other Records Related to the Business, Irrespective of the Medium on Which They Are Stored (Article 20(2)(b))
- The Power to Take or Obtain in Any Form Copies of or Extracts from Such Books or Records (Article 20(2)(c))
- The Power to Seal Any Business Premises and Books or Records for the Period and to the Extent Necessary for the Inspection (Article 20(2)(d))
- The Power to Ask Any Representative or Member of Staff of the Undertaking or Association of Undertakings for Explanations on Facts or Documents Relating to the Subject Matter and Purpose of the Inspection and to Record the Answers
- c The Role of the NCAs, the Member States, and the National Courts in Article 20 Inspections
- d The Application of Article 8 ECHR and Article 7 of the Charter
- e Legal Advice
- (iv) Inspections on Private Premises Under Article 21
- (v) The Power to Take Statements
- (vi) The Privilege Against Self-incrimination
- (vii) Legal Professional Privilege
- E The Second, ‘Inter Partes’ or ‘Adversarial’, Stage of the Procedure
- F Commission Decisions
- (i) General
- (ii) Final Decisions: Infringement Decisions under Regulation 1/2003, Article 7
- (iii) Final Decisions: Commitments Decisions under Regulation 1/2003, Article 9
- (iv) Final Decisions: ‘Consent Decrees’ under Article 7?
- (v) Final Decisions: Findings of Inapplicability
- (vi) Procedural Decisions
- (vii) Interim Measures
- G The Settlement Procedure in Cartel Cases
- H Informal Settlements
- I Fines and Periodic Penalty Payments
- (i) General
- (ii) Fines for Procedural Infringements
- (iii) Periodic Penalty Payments
- (iv) Fines for Substantive Infringements
- a Regulation 1/2003, Article 23(2)
- b The Position of Trade Associations
- c Intentional or Negligent Infringement
- d Development of the Commission’s Fining Policy
- e The Adoption of the Commission’s 1998 Guidelines and 2006 Guidelines on the Method of Setting Fines
- f The Legality and Legal Effect of the Fining Guidelines
- g The 2006 Fining Guidelines
- h Particular Issues in the Application of the Fining Guidelines
- i General Principles of Law
- j Ne Bis in Idem
- k Liability for Fines
- l The Payment and Collection of Fines
- (v) The Leniency Policy in Cartel Cases
- J Sector Inquiries
- K The Powers of the Commission and Due Process
- 8 Proceedings Before the Court of Justice of the European Union
- A Judicial Review
- (i) General
- (ii) Article 263 TFEU
- (iii) Locus Standi—Who Can Bring an Action?
- (iv) Which Acts Can be Challenged?
- (v) The Grounds of Review
- (vi) Appeals Against Penalties: Article 261 TFEU
- (vii) Burden of Proof, Standard of Proof, and Standard of Review
- (viii) Annulment
- (ix) Appeals from the General Court to the Court of Justice
- (x) Interim Measures by the Court under Article 278 TFEU
- B Actions for Damages Under Article 340 TFEU
- A Judicial Review
- 9 Enforcement by the National Competition Authorities Within the European Competition Network
- 10 The Relationship Between EU and National Competition Law
- 11 Criminalisation and Sanctions Against Individuals
- 12 Conclusions
- 13 Further Reading
- 14 Private Enforcement
- 2 Introduction
- 3 The Role of Private Antitrust Litigation, its Relationship with Public Enforcement, and the Experience in the US
- 4 Private Enforcement in the EU
- A Overview: Effective Judicial Protection and the Principle of National Procedural Autonomy
- B Uniform and Concurrent Application of Articles 101 And 102
- C The Enforceability of Agreements Infringing Article 101 or 102
- D Remedies: Injunctions and Damages
- (i) An EU Right to an Injunction
- (ii) Development of an EU Right to Damages
- (iii) The Principle of National Procedural Autonomy— the Difficulties
- P. Nebbia, ‘Damages Actions for the Infringement of EC Competition Law: Compensation or Deterrence?’ (2008) 33 ELRev, 23, 35–36
- R. Nazzini, ‘The Objective of Private Remedies in EU Competition Law’ (2011) 4 Global Competition Litigation Review 131, 139–140
- Case C-360/09, Pfleiderer AG v Bundeskartellamt EU:C:2011:389
- (iv) A Need for Clarification and Harmonisation: The EU Package and Damages Directive
- (v) The Provisions of the Damages Directive
- a The Core Objectives: Full Compensation for All Victims of Antitrust Infringements, Levelling the Playing Field Throughout the EU, and Coordination of Public and Private Enforcement
- b The Compensatory Approach
- c Disclosure
- d Follow-on Actions, Limitation, and Joint and Several Liability
- e Consensual Dispute Resolution
- f The Impact of the Directive
- 5 Conclusions
- 6 Further Reading
- 15 Mergers
- 2 Introduction
- 3 Jurisdiction
- A Concentrations
- B EU Dimension
- C Concentrations With an EU Dimension: A One-Stop Shop?
- D Concentrations Without an EU Dimension
- E A Residual Role for Articles 101 and 102 of the Treaty
- 4 Procedure
- 5 Substantive Appraisal of Concentrations Under the EU Merger Regulation
- A Background
- B Reform and the New Substantive Test
- C Burden and Standard of Proof and Counterfactual
- D A Significant Impediment to Effective Competition
- (i) General
- (ii) Market Power and Market Definition
- (iii) Competitive Assessment of Horizontal Mergers
- a Introduction and Overview
- b Market Shares, Concentration Levels, and GUPPI
- c Possible Non-coordinated Anti-competitive Effects
- d Possible Coordinated Anti-competitive Effects—Collective or Joint Dominance
- (iv) Countervailing Buyer Power
- (v) Entry Analysis and Barriers to Entry
- (vi) Efficiencies
- (vii) The Failing Firm Defence or Rescue Mergers
- (viii) Assessing Mergers in Network Industries and in Two-sided Markets
- (ix) Competitive Assessment of Non-Horizontal Mergers
- a The Non-Horizontal Merger Guidelines
- b Market Shares and Concentration Levels
- c Assessment of Vertical Mergers
- d Assessment of Conglomerate Mergers
- GE/Honeywell and Tetra Laval/Sidel
- W. J. Kolasky, ‘Conglomerate Mergers and Range Effects: It’s a Long Way from Chicago to Brussels’, Address before George Mason University Symposium Washington, DC, 9 November 2001
- Case T-210/01, General Electric Co v Commission [2005] ECR II-5575
- Case T-5/02, Tetra Laval BV v Commission [2002] ECR II-4381
- Non-coordinated Effects—Foreclosure
- Portfolio Power and Foreclosure
- Coordinated Effects
- GE/Honeywell and Tetra Laval/Sidel
- (x) Industrial, Social, and Other Policy
- E Article 2(4), (5), Joint Ventures
- F Restrictions Directly Related and Necessary to the Concentration
- G Commitments or Remedies
- (i) Legal Basis and Time Periods
- (ii) The Commission’s Notice on Remedies Acceptable under the EUMR
- (iii) Types of Commitments
- (iv) Divestiture
- (v) Other Remedies: Access Remedies, Behavioural Commitments, and ‘Remedy Packages’
- (vi) Other Cases
- (vii) Breach of a Condition or Obligations
- (viii) Modification and Waiver of Commitments
- 6 EUMR Statistics
- 7 Judicial Review and Other Proceedings Before the EU Courts
- 8 International Issues
- 9 Conclusions
- 10 Further Reading
- 16 International Aspects
- 2 Introduction
- 3 International Law
- 4 US Law
- 5 EU Law
- 6 International Cooperation
- 7 Conclusions
- 8 Further Reading
- 1 Introduction to Competition Law
- Further Material