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- Preliminary Material
- [No Title]
- Oxford Competition Law General Editor
- Oxford Competition Law Managing Editor
- Oxford Competition Law Case Reporters
- Foreword
- Preface
- 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 Decisions
- 5 Tables of European Court of Human Rights, EFTA Court and National Cases
- Tables of Treaties and Legislation
- Note on Citation
- EU Instruments: Abbreviations
- Main Text
- 1 EU Competition Law and its Territorial Reach
- 1 Introduction
- 2 The EU Treaties
- 3 EU Competition Law
- (a) The aims of the EU
- (b) The aims of the EU competition rules
- (c) The interpretation of the EU competition rules
- (d) The EU competition rules
- (e) 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 34–36 TFEU: free movement of goods.
- Article 37 TFEU: State monopolies.
- Other relevant Treaty provisions.
- International agreements.
- 4 The Institutional Structure of the EU
- (a) The EU institutions
- (b) The EU legislative process
- (c) The EU and EFTA Courts
- 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.
- The EFTA Court.
- (d) The Directorate-General for Competition
- (i) Generally
- (ii) Structure
- (iii) Enforcement through investigation and decision
- (iv) Legislative powers
- (v) Guidelines and guidance
- (vi) DG Competition documents and website
- 5 Territorial Ambit of EU Competition Rules
- (a) The Member States: enlargement
- (b) The Member States: current geographic scope
- (c) EFTA and the EEA
- EFTA.
- The EEA Agreement.
- 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.
- Judicial review of competition decisions by the EFTA Court.
- (d) Agreements between the EU and third countries
- Growing international cooperation and the ICN.
- Competition cooperation agreements with the United States.
- 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.
- 6 The Territorial Jurisdiction of the EU Institutions
- 7 Effect on Trade between Member States
- (a) Generally
- Rule of jurisdiction.
- Effect on trade and the obligation to apply Articles 101 and 102.
- The Effect on Trade Guidelines.
- 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.
- (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 domestic abuse.
- Agreement in only part of a Member State.
- Restrictions arising from activities outside the EU.
- (a) Generally
- 2 Article 101(1)
- 1 Introduction
- 2 Undertakings
- (a) Generally
- (b) The State as an undertaking
- Member States and the essential functions of the State.
- Distinction between economic activity and State functions.
- Other relevant factors.
- 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.
- Activities ancillary to exercise of public functions.
- Article 106 TFEU.
- Local authorities and municipalities.
- (c) Treatment of economically linked legal entities
- 3 Agreements, Decisions and Concerted Practices
- Generally.
- (a) Agreements
- Definition of an agreement.
- Proof of an agreement.
- Agreements may be informal.
- Agreements may be incomplete.
- Agreements made under duress.
- Authority to enter into agreements.
- Purely unilateral conduct.
- Acquiescence to a unilateral policy.
- The Bayer case.
- Cases applying Bayer .
- Incorporation of terms in an agreement.
- Connected agreements.
- Horizontal and vertical agreements.
- Government measures.
- Infringement actions and rights delimitation agreements.
- Assignments and licences of intellectual property rights.
- Terminated or ‘spent’ agreements.
- Judicial settlements and compromise of litigation.
- Collective labour relations agreements.
- Restrictions assessed as part of a concentration or State aid.
- Accession agreements.
- Agreements made prior to date of accession to the EU.
- (b) Concerted practices
- Generally.
- Definition of a concerted practice.
- Concerted practices: requisite elements.
- Concertation or cooperation between undertakings.
- 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.
- Proof of a concerted practice.
- Documentary evidence of a concerted practice.
- Relying on conduct as evidence of a concerted practice.
- Alternative explanations for parallel behaviour.
- Disclosure of pricing information from retailers to suppliers.
- Complaints.
- Concerted practices in vertical relationships.
- Duration of a concerted practice.
- (c) Single continuous infringement
- (d) Public distancing
- (e) Decisions by associations of undertakings
- 4 The Prevention, Restriction or Distortion of Competition
- (a) Generally
- Establishing the internal market.
- Competition.
- Object or effect.
- Prevention, restriction or distortion.
- Restrictions must be assessed in context.
- Law and guidance on restriction of competition.
- Restrictions of competition and restrictions of commercial freedom.
- Positive obligations as restrictions.
- Restrictions of competition and detriment to consumers.
- (b) Some basic concepts
- Horizontal and vertical agreements.
- Decision-making independence.
- Aspects of competition.
- Actual and potential competition.
- Inter-brand and intra-brand competition.
- Inter-technology and intra-technology competition.
- Foreclosure.
- The counterfactual.
- Absence of competition in the counterfactual situation.
- Restriction of competition outside the internal market.
- Per se and rule of reason.
- No per se rules under Article 101(1).
- Rule of reason under Article 101(1)?
- Objective necessity.
- Restrictions and Article 101(3).
- ‘Unfair competition’ not deserving protection.
- Restrictions must be appreciable.
- (c) The ‘object or effect’ of anti-competitive conduct
- (d) Restriction of competition by object
- Ascertaining object: analysis of the agreement in its context.
- Multiple objectives.
- Object even if not implemented.
- Object means no need to prove actual effects.
- Object does not remove the need for some effects analysis.
- Market definition in object cases.
- Pro-competitive effects of object restrictions.
- Hardcore restrictions.
- Examples of horizontal object restrictions.
- Examples of vertical object restrictions.
- Where object is ambivalent.
- (e) Restriction of competition by effect
- Effect.
- Types of effect: the theory of harm.
- Legal and economic context.
- Actual and potential effect.
- Market analysis.
- The relevant market.
- Cumulative effect.
- Effect on parties.
- Effect on third parties.
- 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 remedies.
- (f) Restraints which typically fall outside Article 101(1)
- (g) Ancillary restraints
- (h) Regulatory rules
- (a) Generally
- 5 Appreciable Effect on Competition
- 3 Article 101(3)
- 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 all of its conditions are met.
- Unilateral conduct may preclude the application of Article 101(3).
- Effect of Article 102 on application of Article 101(3).
- Effect of Article 101(3) on application of Article 102.
- Effect of free movement provisions on application of Article 101(3).
- (b) The first condition: benefits of an agreement
- (i) Generally
- Benefits must be objective.
- Economic and/or non-economic benefits.
- Benefits in various markets.
- Geographic location of benefits.
- Benefits must result from the agreement.
- Benefits must be sufficient to compensate for the restriction of competition.
- Goods and services included.
- Classification of benefits not relevant.
- Commission’s current approach.
- Proving that efficiencies will result from an agreement.
- (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
- (b) Current block exemption regulations
- (c) Withdrawal and disapplication
- 4 Article 53(3) of the EEA Agreement
- 1 Introduction
- 4 Market Definition
- 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
- (c) Methodology for defining the relevant market
- 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
- Connected markets.
- Interaction between connected markets.
- System markets.
- Applying the SSNIP test in systems cases.
- Market in licences or access to facilities.
- Separate markets for different stages of the production and distribution chain.
- Market definition in two-sided markets.
- Separate markets for branded and own label products.
- (ii) In-house production
- (iii) Continuous chains of substitution
- (iv) Procurement markets
- (i) Connected markets
- 3 Relevant Geographic Market
- (a) Overview
- (b) Demand-side substitution
- Transport costs.
- Pricing data.
- Differences in prices: further considerations.
- National preferences 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.
- Application of the SSNIP test.
- (c) Supply-side substitution
- (d) Particular issues in determining the geographic market
- 4 Temporal Market
- 1 Introduction and Overview
- 5 Cartels
- 1 An Overview
- Cartels are an enforcement priority.
- Structure of this Chapter.
- (a) The typical subject-matter of cartel activity
- (b) How cartels operate
- (c) Arguments typically used to justify cartels
- (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 one cartel participant incriminating another undertaking.
- Credibility of statements made by a leniency applicant.
- Reliance on undisclosed sources.
- Proof of duration of the cartel.
- (e) Sanctions and redress
- 2 Prices and Pricing Restrictions
- Price-fixing prohibited.
- Means of price-fixing.
- Effect of price-fixing on prices.
- Price-fixing.
- Agreement to fix recommended or maximum prices.
- Elements added to price.
- Common approaches to prices and structures.
- Other contractual provisions related to pricing.
- Price transparency.
- Price agreements among distributors.
- Price agreements on imports into the Union.
- 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.
- Fixing of purchase prices.
- Collective resale price maintenance.
- Resale price maintenance for books.
- Individual resale price maintenance.
- Restrictions on advertising.
- Price-fixing and Article 101(3).
- 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 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) Customer allocation
- (a) Generally
- 5 Information Exchange
- 6 Collective Exclusive Dealing
- 1 An Overview
- 6 Non-Covert Horizontal Cooperation
- 1 Introduction
- 2 Information Exchange
- (a) Introduction
- (b) Information exchange amounting to an agreement, concerted practice or decision by an association of undertakings
- (c) Analysis of the competitive effects of information exchanges
- Positive effects.
- Negative effects.
- Object restrictions: practices facilitating the fixing of purchase or selling prices.
- Pre-pricing communications and exchange of quotation prices.
- Horizontal Cooperation Guidelines.
- Disclosure of pricing information: cases at the national level.
- Article 101(1): restrictive 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)
- (b) Application of Article 101(3)
- 8 Trade Associations
- 9 Horizontal Cooperation Agreements—Illustrations from Specific Sectors
- (a) Airlines
- (b) Banking and payment services
- (c) Professional services
- (d) Sporting bodies and competitions
- (e) Natural resources infrastructure
- (f) E-commerce platforms
- 7 Vertical Agreements Affecting Distribution or Supply
- 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.
- 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 internet-only resellers from the network.
- Limits on internet sales by authorised resellers.
- 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
- Legislative history and the review of Regulation 1400/2002.
- Regulation 461/2010.
- Commission guidance on motor vehicle distribution.
- Summary of applicable legislation.
- Scope of application of Regulation 461/2010.
- Incorporation of terms into contract: transparency.
- (a) Distribution of new motor vehicles: position prior to 31 May 2013
- (b) Distribution of new motor vehicles: position after 1 June 2013
- 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.
- (c) 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
- 1 Introduction
- 2 Jurisdictional Scope of the Merger Regulation
- (a) Overview of ‘one-stop shop’ principle
- (b) Concentrations
- (c) Full-function joint venture undertakings
- (d) EU dimension
- (i) Turnover thresholds
- (ii) Turnover calculation
- (iii) Undertakings concerned
- (iv) Identification of a ‘group’ for the purpose of calculating turnover
- (e) Pre-notification reallocation of jurisdiction
- (f) Post-notification reallocation of jurisdiction
- (g) National investigations on grounds other than competition
- 3 Procedure
- (a) In general
- (b) Initial Phase I investigation
- (c) In-depth Phase II investigation
- (i) Phase II process
- Formal steps in the investigation.
- Duration of Phase II investigation.
- Suspension of the 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 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) Commission’s powers of investigation
- (f) Commission’s powers of sanction
- 4 Substantive Appraisal of Concentrations
- (a) In general
- (b) Market definition
- (c) SIEC test
- (d) Unilateral effects
- (e) Coordinated effects
- (f) Vertical and conglomerate effects
- (g) Other considerations relevant to substantive appraisal
- (h) Coordinative aspects of certain full-function joint ventures
- 5 Judicial Review by the EU Courts
- 6 Application of Articles 101 and 102 in Field of Mergers and Acquisitions
- 7 National Merger Control and International Cooperation
- 9 Intellectual Property Rights
- 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
- (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 772/2004 and other block exemptions
- (c) The scope of Regulation 772/2004
- (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
- (h) Review of Regulation 772/2004
- 10 Article 102
- 1 Introduction
- (a) Generally
- Article 102.
- Article 102 and the internal market.
- Scope of Article 102.
- The Commission’s Guidance on its enforcement priorities in relation to exclusionary conduct by dominant undertakings.
- 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.
- Structural barriers: vertical integration.
- Structural barriers: rights over land and ownership of property.
- Strategic barriers: conduct as evidence of dominance.
- Advertising and reputational effects.
- (d) Countervailing market power
- (e) Appraisal of market power in more complex cases
- (f) Collective or joint dominance
- 3 Abuse of a Dominant Position
- (a) Introduction
- (b) Some basic concepts
- The ‘special responsibility’ of dominant firms.
- Anti-competitive intent.
- Anti-competitive effects.
- Commercial advantage derived from abuse.
- Objective justification.
- Proportionality.
- Efficiency.
- 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 dominant firm’s ‘home’ market.
- Categories of exclusionary pricing.
- (i) Predatory pricing
- Predatory pricing.
- Legitimate price competition.
- Measures of cost.
- Legal test.
- Refinement of the legal test.
- Assessment of variable costs in predatory pricing.
- Other measures of cost.
- Plan to eliminate a competitor.
- Potential for recoupment of losses.
- Possible 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 categories of buyer.
- Price discrimination on grounds of nationality.
- Discrimination which harms consumers.
- Objective justification.
- (iii) Fidelity and loyalty rebates
- Fidelity rebates, discounts and similar practices.
- Two stages of analysis.
- Exclusionary effect of loyalty rebates.
- Exclusionary effect of turnover-related discounts.
- Exclusionary effect of stepped discount arrangements.
- Criticism of the case law.
- Discounts dependent on the dominant firm’s discretion.
- Bundled rebates.
- Objective economic justification.
- Loyalty rebates in national courts.
- (iv) Exclusive dealing and long-term contracts
- (v) Excessive pricing
- (d) Related market abuses
- (i) Generally
- (ii) Margin squeeze
- Margin squeezing is a distinct abuse.
- Margin squeeze: the applicable costs test.
- Need to prove anti-competitive effects.
- Circumstances in which anti-competitive effects are probable.
- Margin squeeze: irrelevant considerations.
- 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
- (v) Refusal to supply
- Guiding considerations.
- Structure of this Section.
- Constructive refusal to supply.
- Discontinuing the supply of goods to an existing customer.
- Exclusion of downstream competition.
- Objective justification for refusing to supply an existing customer.
- Refusal of supply to new customers.
- Essential facilities.
- Access to essential facilities.
- The criterion of ‘necessity’ in the context of refusal to supply.
- Dominant undertaking’s presence in 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.
- Abuse by sporting bodies.
- Sport: the Commission’s White Paper.
- Limiting production, markets or technical development.
- Abusive alteration of the structure of the market.
- Inefficiency as an abuse.
- Abusive use of litigation.
- Discrimination on grounds of nationality and restrictions on parallel trade.
- 1 Introduction
- 11 The Competition Rules and the Acts of Member States
- 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.
- Distortion of competition in the market not enough.
- 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.
- 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) in national courts.
- Article 106(3).
- (b) Article 346 TFEU: military equipment
- (a) Article 106(2) TFEU: services of general interest
- 12 Sectoral Regimes
- 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.
- 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) Ongoing policy developments
- (b) Application of competition law
- (i) Generally
- (ii) Relationship of 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
- (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.
- 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.
- International roaming charges.
- Abuses of a dominant purchasing position.
- (vi) Application of Article 106
- (a) Regulatory framework
- 3 Energy
- 4 Insurance
- Generally.
- Insurance block exemption.
- Categories of agreements covered.
- Categories of agreement no longer covered.
- Joint compilations, tables and studies.
- Block exemption conditions for cooperation in relation to compilations, tables and studies.
- Common coverage of certain types of risks: insurance pools.
- Exemption for pools covering new risks.
- Exemption for pools covering risks that are not new.
- Individual application of Article 101(3) to insurance pools.
- Standard policy conditions.
- Technical standards for security devices.
- Insurance intermediaries.
- Sector inquiry.
- 5 Postal Services
- 6 Agriculture
- 7 Transport
- (a) Generally
- (b) Rail, road and inland waterway transport
- (c) Maritime transport
- (d) Air transport
- 13 Enforcement and Procedure
- 1 Introduction
- 2 Fundamental Rights and the Commission’s Powers of Enforcement
- 3 The Commission’s Powers of Investigation
- (a) Power to obtain information
- Information from undertakings.
- Request for information.
- Decision requiring information.
- Economic data.
- Addressees of requests for information.
- ‘Necessity’ for information requested.
- Penalties in respect of information.
- Information from Member States.
- Voluntary interviews.
- Privilege.
- Information gathering for sectoral inquiries.
- (b) Powers of inspection
- Powers of inspection of business premises.
- Power of inspection of non-business premises.
- Inspection of undertakings under authorisation.
- Inspection of undertakings pursuant to decision.
- Inspection of other premises.
- Assistance by Member States.
- Inspections and the right to privacy.
- Authorisation of an inspection by the courts of a Member State.
- Powers that can be exercised during an inspection.
- The conduct of the inspection.
- Penalties in respect of non-compliance.
- Limits on the Commission’s use of information acquired.
- Cooperation between the Commission and national courts.
- Confidential information passed to NCAs.
- Consequences of breach.
- (c) Privilege
- (a) Power to obtain information
- 4 Complaints
- Generally.
- Provision of information: Form C.
- Legitimate interest.
- Extent of the Commission’s duty to consider a complaint.
- Procedure: three stages.
- Procedure: first stage.
- Procedure: second stage.
- Procedure: third stage.
- Decision upon a complaint.
- Lack of Union interest.
- Complainant’s rights after initiation of procedure.
- 5 Formal Procedure Prior to an Adverse Decision
- (a) The nature of Commission proceedings
- (b) Initiation of proceedings and the statement of objections
- Initiation of proceedings.
- Informal and ‘state of play’ meetings.
- Closure of the investigation.
- The statement of objections: its purpose and status.
- Contents of the statement of objections.
- Statement of objections where fines proposed.
- Obligation to supply relevant documents.
- Reply to the statement of objections.
- Submissions from third parties.
- Supplementary statement of objections and ‘letters of facts’.
- (c) Access to the file
- Access to the file.
- The Commission’s Access to File Notice.
- Effect of lack of access on validity of decision.
- Exculpatory and incriminating documents.
- When the right of access to the file arises.
- The documents to which access is granted.
- Internal Commission documents.
- Correspondence between the Commission and other public bodies.
- Business secrets and other confidential information.
- Other confidential documents.
- Disclosure of non-accessible documents.
- Obligation to identify confidential information when submitted.
- Procedure for granting access to the file.
- Procedure in cases of voluminous documents.
- Provision of documents from the file to third parties.
- (d) The hearing and subsequently
- Hearings.
- Hearing Officer.
- Conduct of the hearing.
- Third party participation in the hearing.
- Admissibility of evidence.
- Developments during the course of the procedure.
- Advisory Committee.
- Adoption and authentication of the decision.
- Rules of Procedure on adoption of decisions.
- Readoption of decision following annulment.
- Relationship between the decision and the statement of objections.
- Legal status of the decision.
- Publication of decisions.
- 6 Commitments and Settlement
- 7 Interim Measures
- 8 Findings of Inapplicability, Declarations of Infringement and Orders to Terminate
- Declarations of inapplicability.
- Declaratory infringement decisions.
- Power to terminate infringements.
- Orders to terminate.
- ‘Like effect’ orders.
- Power to order positive action.
- Power to control prices.
- Appointment of experts and monitoring trustees.
- Power to order divestiture.
- Lapse of time or delay.
- Consequences of non-compliance with directions.
- 9 Review by the General Court
- Generally.
- The jurisdiction for review by the General Court.
- (a) Review of fines under Article 261 TFEU
- (b) Review of Commission decisions
- (i) Reviewable acts of the Commission and standing to bring appeal
- (ii) The grounds of annulment
- (iii) The standard of review
- (iv) Procedural aspects
- The Court’s procedure.
- Time limits for bringing actions.
- Fast-track procedure.
- Whether decisions can be supported by new material.
- Measures of organisation and inquiry.
- Interveners.
- Power of partial annulment.
- Consequences of successful appeal by some addressees of the decision.
- Consequences of total annulment.
- Non-contractual liability to pay damages.
- Costs and other orders.
- (c) Action under Article 265 TFEU for failure to act
- (d) Interim relief from the General Court
- 10 Appeals to the Court of Justice
- 14 Fines for Substantive Infringements
- 1 Introduction
- (a) Jurisdiction and the Commission’s discretion
- (b) Intentional or negligent infringement
- 2 The Basic Amount of the Fine
- In general.
- (a) Value of sales
- (b) Percentage of the value of sales to reflect gravity of infringement
- (c) Duration of the infringement
- (d) Additional amount for cartel participants
- 3 Aggravating and Mitigating Circumstances
- (a) Adjustment of the basic amount
- (b) Aggravating circumstances
- (c) Mitigating circumstances
- In general.
- (i) Factors arising from matters following the Commission’s investigation
- Prompt termination of an infringement.
- Introduction of competition compliance programme.
- Cooperation with a Commission investigation.
- ‘Effective immunity’ in respect of matters proved due to cooperation.
- Non-contestation or admission of facts in the statement of objections.
- Responses not amounting to cooperation.
- Compensation paid to third parties.
- Dismissal of staff responsible for the infringement.
- Conduct pending appeal of decision.
- Reduction of fine for delay.
- (ii) Factors relating to the undertaking’s culpability for the infringement
- (iii) Symbolic fines
- (iv) Other factors
- 4 Deterrence, Disgorgement of Benefit and Inability to Pay
- 5 Ancillary Matters of Law and Practice
- (a) Determination of fines for different infringing parties
- (b) Fines on parent and successor companies
- In general.
- Effect of joint and several liability.
- (i) Parents and subsidiaries
- Undertakings as an economic entity.
- Imputing the conduct of subsidiaries to their parents.
- Decisive influence.
- Presumption when a parent owns all of the shares in a subsidiary.
- Presumption when a parent owns virtually all of the shares in a subsidiary.
- The presumption of decisive influence is rebuttable.
- Evidence rebutting the presumption of decisive influence.
- The Commission’s treatment of rebuttal evidence.
- Decisive influence established on the facts.
- Decisive influence over the conduct of a joint venture.
- Equal treatment of parent companies.
- Liability of a parent company in its own right.
- Responsibility of a principal for conduct of its agent.
- (ii) Successor undertakings
- (c) Limits on the ability to fine: double jeopardy and time limits
- (d) Payment and enforcement
- 6 The Leniency Notice
- 7 Settlement
- 8 Periodic Penalty Payments
- 1 Introduction
- 15 The Enforcement of the Competition Rules by National Competition Authorities
- 1 Introduction
- 2 The European Competition Network (‘ECN’)
- 3 Cooperation between Members of the ECN in the Application of the Competition Rules
- Generally.
- (a) Avoidance of multiple proceedings
- (b) Assisting with investigations
- (c) Exchange of information
- (d) Exchange of information and leniency regimes of ECN members
- (e) Ongoing liaison on policy and proceedings
- 4 Cooperation between the Commission and National Courts
- 1 EU Competition Law and its Territorial Reach