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Competition Law, 9th Edition by Whish, Richard; Bailey, David (26th July 2018)
- Preliminary Material
- Preface to the ninth edition
- New to this edition
- Contents
- Table of treaties and conventions
- Table of EU legislation
- Table of statutes and statutory instruments
- Table of CMA reports, decisions and publications
- Table of guidelines, guidance and other publications
- Table of cases
- List of abbreviations
- Main Text
- 1 Competition policy and economics
- Preliminary Material
- 1 Introduction
- 2 Overview of the Practices Controlled by Competition Law
- 3 The Theory of Competition
- (A) The benefits of competition
- (B) The harmful effects of monopoly
- (C) Questioning the theory of perfect competition
- (D) Questioning competition as a goal in itself
- (i) Economies of scale and scope and natural monopolies
- (ii) Network effects and two-sided markets
- (iii) Particular sectors
- (iv) Beneficial restrictions of competition
- (v) Ethical and other objections
- (vi) Industrial policy
- (vii) The economic crisis and competition policy
- (viii) Competitions are there to be won
- (E) Empirical evidence
- (F) Contestable markets
- (G) Effective competition
- (H) Conclusion
- 4 The Function of Competition Law
- 5 Market Definition and Market Power
- (A) Market definition
- (B) Circumstances in which it is necessary to define the relevant market
- (C) The relevant product market
- (i) The legal test
- (ii) Measuring interchangeability
- (iii) Commission’s Notice on the Definition of the Relevant Market for the Purposes of [EU] Competition Law
- (iv) Demand-side substitutability
- (v) The ‘Cellophane Fallacy’
- (vi) Supply-side substitutability
- (vii) Evidence relied on to define relevant markets
- (viii) Examples of evidence that may be used in defining the relevant product market
- (ix) A word of caution on the Notice
- (x) Spare parts and the aftermarket
- (xi) Procurement markets
- (xii) Innovation markets
- (D) The relevant geographic market
- (i) The legal test
- (ii) The Commission’s Notice on Market Definition
- (iii) Examples of evidence that may be used in defining the relevant geographic market
- (a) Past evidence of diversion of orders to other areas
- (b) Basic demand characteristics
- (c) Views of customers and competitors
- (d) Current geographic pattern of purchases
- (e) Trade flows/patterns of shipments
- (f) Barriers and switching costs associated with the diversion of orders to companies located in other areas
- (E) The temporal market
- (F) Concluding comment on market definition
- (G) Market power
- (H) A final reflection on market shares
- 2 Overview of EU and UK competition law
- Preliminary Material
- 1 Introduction
- 2 EU Law
- 3 UK Law
- (A) Competition Act 1998
- (B) Enterprise Act 2002
- (C) Changes to domestic law as a result of Regulation 1/2003
- (D) Enterprise and Regulatory Reform Act 2013
- (E) Consumer Rights Act 2015
- (F) Brexit
- (G) Institutions
- (i) Secretary of State and the Department for Business, Energy and Industrial Strategy
- (ii) The Lord Chancellor
- (iii) The CMA
- (a) Background to the creation of the CMA
- (b) Establishment of the CMA and the CMA Board
- (c) The CMA Panel
- (d) The staff of the CMA
- (e) The CMA’s Vision, Annual Plan and Strategic Assessment
- (f) Performance framework
- (g) Annual Reports on performance and concurrency
- (h) Functions of the CMA
- (i) Rules
- (j) Publications, information, guidance etc
- (iv) Serious Fraud Office
- (v) Sectoral regulators
- (vi) Competition Appeal Tribunal
- (vii) Civil courts
- (viii) Criminal courts
- 4 The Relationship Between EU Competition Law and National Competition Laws
- 5 The Institutional Structure of EU and UK Competition Law
- 3 Article 101(1)
- Preliminary Material
- 1 Introduction
- 2 Undertakings and Associations of Undertakings
- (A) Basic definition
- (B) ‘Associations of undertakings’
- (C) The ‘single economic entity’ doctrine
- (D) Corporate reorganisation
- (E) Liability for competition law infringements when one business is sold to another
- 3 Agreements, Decisions and Concerted Practices
- (A) Agreements
- (i) Examples of agreements
- (ii) Factors that do not affect the existence of an agreement
- (iii) Agreement ‘and/or’ concerted practice
- (iv) Single overall agreement
- (a) The problem of proof
- (b) Single overall agreement: terminology
- (c) Single overall agreement as an objective fact
- (d) Conditions for establishing a single overall agreement
- (e) Implications of a single overall agreement
- (f) Partial liability for a single overall agreement
- (g) Single and repeated infringement
- (v) ‘Unilateral’ conduct and Article 101(1) in vertical cases
- (B) Decisions by associations of undertakings
- (C) Concerted practices
- (A) Agreements
- 4 The Object or Effect of Preventing, Restricting Or Distorting Competition
- (A) Preliminary comments
- (B) Horizontal and vertical agreements
- (C) The ‘object or effect’ of preventing, restricting or distorting competition
- (D) Agreements that have as their object the prevention, restriction or distortion of competition
- (i) Meaning of ‘object’
- (ii) The legal test for identifying restrictions by object
- (iii) Allocating cases to the object box
- (iv) Object restrictions and the de minimis doctrine
- (v) Is it possible to justify object restrictions under Article 101(3)?
- (vi) Why does Article 101(1) prohibit object restrictions without proof of anti-competitive effects?
- (vii) Object restrictions and per se rules under the Sherman Act
- (viii) The contents of the object box
- (ix) The contents of the object box
- (x) Refinement of the range of agreements within the object box
- (E) Agreements that have as their effect the prevention, restriction or distortion of competition
- (i) Meaning of ‘effect’
- (ii) Extensive analysis of an agreement in its market context is required to determine its effect
- (iii) Allocating cases to the effects box
- (iv) The need to establish a ‘counterfactual’
- (v) Actual and potential competition
- (vi) Commercial ancillarity
- (vii) Regulatory ancillarity: the judgment of the Court of Justice in Wouters
- (viii) The application of Article 101(1) to sporting rules
- (ix) Have the EU Courts embraced a ‘rule of reason’?
- (x) Joint ventures
- (F) Article 106(2)
- (G) State compulsion and highly regulated markets
- (H) Commission Notices
- (i) Notice on sub-contracting agreements
- (ii) Notice on the application of the competition rules to cross-border credit transfers
- (iii) Notice on the application of the competition rules to the postal sector
- (iv) Notice on the application of the competition rules to access agreements in the telecommunications sector
- (v) Notice regarding restrictions directly related and necessary to the concentration
- (vi) Notice on agreements of minor importance
- (vii) Guidelines on the effect on trade concept contained in Articles [101 and 102 TFEU]
- (viii) Guidelines on the application of Article [101(3) TFEU]
- (ix) Guidelines on the application of Article 101 TFEU to technology transfer agreements
- (x) Commission Consolidated Jurisdictional Notice
- (xi) Guidelines on vertical restraints
- (xii) Guidelines on horizontal cooperation agreements
- 5 The De Minimis Doctrine
- 6 The Effect on Trade Between Member States
- 7 Checklist of Agreements that Fall Outside Article 101(1)
- 4 Article 101(3)
- Preliminary Material
- 1 Introduction
- 2 The Article 101(3) Criteria
- (A) First condition of Article 101(3): an improvement in the production or distribution of goods or in technical or economic progress
- (B) Third condition of Article 101(3): indispensability of the restrictions
- (C) Second condition of Article 101(3): fair share for consumers
- (D) Fourth condition of Article 101(3): no elimination of competition in a substantial part of the market
- (E) Judicial review by the General Court
- 3 Regulation 1/2003
- 4 Block Exemptions
- 5 Article 102
- Preliminary Material
- 1 Introduction
- 2 Overview of the Law and Practice of Article 102
- 3 The Commission’s Guidance on Article 102 Enforcement Priorities
- 4 Undertakings
- 5 The Effect on Inter-State Trade
- 6 Dominant Position
- 7 A Substantial Part of the Internal Market
- 8 Abuse
- (A) Introduction
- (B) Four preliminary points
- (C) What is the purpose of Article 102?
- (D) Jurisprudence on the meaning of abuse
- (E) Are there or should there be any per se rules under Article 102?
- (F) Exploitative, exclusionary and single market abuses
- (G) Exploitative abuses
- (H) Exclusionary abuses
- (I) Abuses that are harmful to the single market
- 9 Defences
- 10 The Consequences of Infringing Article 102
- 6 The obligations of Member States under the EU competition rules
- Preliminary Material
- 1 Introduction
- 2 Article 4(3) TEU—Duty of Sincere Cooperation
- (A) The relationship between Article 4(3) TEU and Articles 101 and 102 TFEU
- (B) The case law predominantly concerns Article 4(3) TEU in conjunction with Article 101 TFEU
- (C) The case law on Article 4(3) and the competition rules
- (D) Application of the case law to lawyers’ fees
- 3 Article 106 TFEU—Compliance with the Treaties
- (A) Article 106(1)
- (i) Undertakings
- (ii) Public undertakings
- (iii) Undertakings with ‘special or exclusive rights’
- (iv) ‘Measures’
- (v) The obligations on Member States under Article 106(1)
- (vi) The judgments of 1991
- (vii) The Corbeau judgment
- (viii) Making sense of the case law on Article 102 in conjunction with Article 106(1)
- (ix) Remedies and direct effect
- (B) Article 106(2)
- (C) Article 106(3)
- (A) Article 106(1)
- 4 Article 37 TFEU—State Monopolies of a Commercial Character
- 5 Articles 107 to 109 TFEU—State Aids
- 7 Articles 101 and 102: public enforcement by the European Commission and national competition authorities under Regulation 1/2003
- Preliminary Material
- 1 Overview of Regulation 1/2003
- 2 The Commission’s Enforcement Powers under Regulation 1/2003
- (A) Burden and standard of proof
- (B) Chapter II: powers
- (C) Chapter III: Commission decisions
- (D) Chapter IV: cooperation
- (i) Article 11: cooperation between the Commission and the NCAs
- (ii) Article 12: exchange of information
- (iii) Article 13: suspension or termination of proceedings
- (iv) Article 14: Advisory Committee
- (v) Article 15: cooperation with national courts
- (vi) Article 16: uniform application of EU competition law
- (E) Chapter V: powers of investigation
- (i) Article 17: investigations into sectors of the economy and into types of agreements
- (ii) Article 18: requests for information
- (iii) Article 19: power to take statements
- (iv) Article 20: the Commission’s powers of inspection
- (v) Article 21: inspection of other premises
- (vi) Article 22: investigations by NCAs
- (F) Chapter VI: penalties
- (G) Chapter VII: limitation periods
- (H) Chapter VIII: hearings and professional secrecy
- (I) Chapter IX: block exemption regulations
- (J) Chapter X: general provisions
- (K) Chapter XI: transitional, amending and final provisions
- 3 Regulation 1/2003 in Practice
- 4 Judicial Review
- 8 Articles 101 and 102: private enforcement in the courts of Member States
- Preliminary Material
- 1 Introduction
- 2 EU Law: Actions for Damages
- (A) Private enforcement prior to the Directive
- (B) The movement towards reform
- (C) The Damages Directive
- (D) The relationship between the Commission and domestic courts
- (E) Private international law
- (F) Collective redress in the EU
- (G) Funding litigation
- (H) Actions for injunctions and other types of relief
- 3 Private Actions in the UK Courts
- (A) The availability of damages in the UK courts
- (B) Implementation of the Damages Directive in the UK
- (C) The cause of action
- (D) Burden and standard of proof
- (E) Damages claims may be brought in the High Court or the Competition Appeal Tribunal
- (F) Decisions of the European Commission, the CMA and other NCAs
- (G) Contribution
- (H) Collective redress in the UK
- (I) Limitation rules
- (J) Mediation
- (K) Private enforcement of competition law in practice in the UK
- 4 Competition Law as a Defence
- 5 Arbitration
- 9 Competition Act 1998: substantive provisions
- Preliminary Material
- 1 Introduction
- 2 The Competition Act 1998—Overview
- 3 The Chapter I Prohibition
- (A) Section 2(1): the Chapter I prohibition
- (i) ‘Subject to section 3’
- (ii) Agreements between undertakings, decisions by associations of undertakings or concerted practices
- (iii) ‘Undertakings’
- (iv) ‘Agreements’
- (v) ‘Decisions by associations of undertakings’
- (vi) ‘Concerted practices’
- (vii) ‘Single overall agreement’
- (viii) ‘Object or effect the prevention, restriction or distortion of competition within the UK’
- (ix) Appreciability
- (x) Applicable law and territorial scope
- (B) Section 2(2): illustrative list
- (C) Section 2(3): extraterritorial application
- (D) Section 2(4): voidness
- (E) Sections 2(5) and 2(6): interpretation
- (F) Section 2(7): the UK
- (G) Section 2(8): the ‘Chapter I prohibition’
- (H) The Chapter I prohibition: excluded agreements
- (I) The Chapter I prohibition: exemptions
- (A) Section 2(1): the Chapter I prohibition
- 4 The Chapter II Prohibition
- 5 ‘Governing Principles Clause’: Section 60 of the Competition Act 1998
- 6 The Competition Act 1998 in Practice
- 7 Brexit and the Future of UK Competition Law
- 10 Competition Act 1998 and the cartel offence: public enforcement and procedure
- Preliminary Material
- 1 Introduction
- 2 Inquiries and Investigations
- (A) Opening a formal investigation
- (B) Power to require documents and information
- (C) Power to enter premises without a warrant
- (D) Power to enter premises with a warrant
- (E) Powers of surveillance
- (F) Access to lawyers
- (G) Limitation on the use of the powers of investigation
- (H) Sanctions
- (I) EU investigations
- 3 Complaints
- 4 Opinions and Informal Advice
- 5 Enforcement
- (A) Procedure
- (B) Commitments
- (C) Interim measures
- (D) Directions
- (E) Penalties
- (F) Leniency
- (i) Terminology
- (ii) Key features of the UK leniency system
- (iii) Eligibility for leniency
- (iv) Actions before applying for leniency
- (v) Checking the availability of leniency and initial application
- (vi) Cooperation throughout investigation
- (vii) Leniency and no-action agreements
- (viii) Disclosure and information
- (ix) Other issues relating to criminal proceedings
- (x) Other procedural issues: leniency plus/penalties
- (xi) Bad faith/withdrawal of leniency/revocation of no-action letters
- (G) Settlements
- (H) The penalty provisions in practice
- 6 The Cartel Offence and Company Director Disqualification
- (A) The cartel offence
- (i) Definition of the cartel offence
- (ii) Prosecution guidance
- (iii) Circumstances in which the cartel offence is not committed
- (iv) Defences
- (v) Powers of investigation and search
- (vi) Powers of surveillance
- (vii) Prosecution and penalty
- (viii) Parallel CMA criminal and civil investigations
- (ix) No-action letters
- (x) Extradition
- (xi) Relationship between the cartel offence and proceedings against cartels under EU competition law
- (xii) The cartel offence in practice
- (B) Company director disqualification
- (C) Conspiracy to defraud at common law
- (A) The cartel offence
- 7 Concurrency
- 8 Appeals
- 9 Article 267 References
- 10 NAO Reports on the UK Competition Regime
- 11 Enterprise Act 2002: market studies and market investigations
- Preliminary Material
- 1 Introduction
- 2 Gathering Information About Markets
- 3 Super-Complaints
- 4 Market Studies
- 5 Market Investigation References
- (A) Overview of the system of market investigations
- (B) Guidelines and other relevant publications
- (C) The making of references
- (i) Power to make ordinary references
- (ii) Power to make cross-market references
- (iii) Ministerial power to make references
- (iv) The discretion of the CMA whether to make a reference
- (v) Consultation before making a reference
- (vi) Content and variation of references
- (vii) Restrictions on the ability to make a reference
- (viii) Market investigation references in practice
- (D) The determination of references
- 6 Public Interest Cases
- 7 Enforcement
- 8 Supplementary Provisions
- 9 The Market Investigation Provisions in Practice
- 10 Orders and Undertakings Under the Fair Trading Act 1973
- 12 The international dimension of competition law
- Preliminary Material
- 1 Introduction
- 2 Extraterritoriality: Theory
- 3 The Extraterritorial Application of US Antitrust Law
- 4 The Extraterritorial Application of EU Competition Law
- 5 The Extraterritorial Application of UK Competition Law
- 6 Resistance to Extraterritorial Application of Competition Law
- 7 The Internationalisation of Competition Law
- 13 Horizontal agreements (1): cartels
- Preliminary Material
- 1 Introduction
- 2 Widespread Consensus that Cartels Should be Prohibited
- 3 EU Policy Towards Cartels
- 4 Horizontal Price Fixing
- 5 Horizontal Market Sharing
- 6 Quotas and Other Restrictions on Production
- 7 Collusive Tendering
- 8 Agreements Relating to Terms and Conditions
- 9 Exchanges of Information
- 10 Advertising Restrictions
- 11 Anti-Competitive Horizontal Restraints
- 12 UK Law
- 14 Horizontal agreements (2): oligopoly, tacit collusion and collective dominance
- Preliminary Material
- 1 Introduction
- 2 The Theory of Oligopolistic Interdependence
- 3 Article 101
- 4 Article 102 and Collective Dominance
- (A) The linguistic background
- (B) The definition of collective dominance under Article 102
- (i) ‘One or more undertakings’: the narrow view of Article 102
- (ii) ‘One or more undertakings’: the wide view of Article 102
- (iii) Confirmation of the wide view
- (iv) Further judgments and decisions on collective dominance under Article 102
- (v) The judgment of the Court of Justice in Compagnie Maritime Belge Transports v Commission
- (C) Abuse of collective dominance under Article 102
- 5 UK Law
- 15 Horizontal agreements (3): cooperation agreements
- Preliminary Material
- 1 Introduction
- 2 Full-Function Joint Ventures
- 3 The Application of Article 101 to Horizontal Cooperation Agreements and the Commission’s Guidelines on Horizontal Cooperation Agreements
- 4 Information Exchange
- 5 Research and Development Agreements
- (A) Market definition
- (B) The application of Article 101(1) to R&D agreements
- (C) The application of Article 101(3) to R&D agreements
- (D) The block exemption for R&D agreements: Regulation 1217/2010
- (i) Article 1: definitions
- (ii) Article 2: exemption
- (iii) Article 3: conditions for exemption
- (iv) Article 4: duration of exemption and the market share threshold
- (v) Article 5: hard-core restrictions
- (vi) Article 6: excluded restrictions
- (vii) Article 7: application of the market share threshold
- (viii) Article 8: transitional period
- (ix) Article 9: period of validity
- (x) Withdrawal of the block exemption
- 6 Production Agreements
- 7 Purchasing Agreements
- 8 Commercialisation Agreements
- 9 Standardisation Agreements
- 10 Other Cases of Permissible Horizontal Cooperation
- 11 The Application of the Chapter I Prohibition in the UK Competition Act 1998 to Horizontal Cooperation Agreements
- 16 Vertical agreements
- Preliminary Material
- 1 Introduction
- 2 The Distribution Chain
- 3 Vertical Integration
- 4 Commercial Agents
- 5 Vertical Agreements: Competition Policy Considerations
- (A) Introduction
- (B) Vertical agreements: possible detriments to competition
- (C) Vertical agreements: possible benefits to competition
- (i) The free-rider problem
- (ii) Opening up and entering new markets
- (iii) The certification free-rider issue
- (iv) The hold-up problem
- (v) The hold-up problem where know-how is transferred
- (vi) The ‘vertical externality issue’
- (vii) Economies of scale in distribution
- (viii) Capital market imperfections
- (ix) Uniformity and quality standardisation
- 6 Vertical Agreements: Article 101(1)
- (A) Introduction
- (B) The de minimis doctrine
- (C) The combined effect of the de minimis doctrine and the block exemption
- (D) The case law of the EU Courts on vertical agreements
- (E) The methodology for the analysis of vertical agreements in the Commission’s Vertical guidelines
- (F) Direct and indirect export bans
- (G) Application of Article 101(1) to assessment of other types of vertical agreements
- (i) Single branding agreements
- (ii) Exclusive distribution agreements
- (iii) Exclusive customer allocation agreements
- (iv) Selective distribution agreements
- (v) Franchising agreements
- (vi) Exclusive supply agreements
- (vii) Up-front access payments
- (viii) Category management agreements
- (ix) Tying agreements
- (x) Pricing restrictions
- (xi) Parity provisions
- 7 Vertical Agreements: Regulation 330/2010
- (A) Introduction
- (B) Brief description of the provisions of the block exemption
- (C) Article 1: definitions
- (D) Article 2: scope of the block exemption
- (i) Article 2(1): block exemption for vertical agreements
- (ii) Many vertical agreements do not infringe Article 101(1)
- (iii) If it is not forbidden, it is permitted
- (iv) The definition of a vertical agreement
- (v) The exempted agreement may be multilateral
- (vi) ‘For the purposes of the agreement’
- (vii) Agreements with final consumers would not be vertical agreements
- (viii) ‘Relating to the conditions under which the parties may purchase, sell or resell certain goods or services’
- (ix) Interconnection agreements
- (x) Agency
- (xi) Article 2(2): associations of retailers
- (xii) Article 2(3): ancillary provisions in relation to intellectual property rights
- (xiii) Article 2(3) is applicable only where there is a vertical agreement
- (xiv) The IPR provisions must be for the use of the buyer
- (xv) The IPR provisions must not be the object of the agreement
- (xvi) The IPR provisions must be directly related to the use, sale or resale of goods or services by the buyer or its customers
- (xvii) The IPR provisions must not have an illegitimate object or effect
- (xviii) Article 2(4): agreements between competing undertakings
- (xix) Article 2(5): agreements within the scope of another block exemption
- (E) Article 3: the market share cap
- (F) Article 4: hard-core restrictions
- (i) Article 4(a): resale price maintenance
- (ii) Article 4(b): territorial and customer restrictions
- (iii) Article 4(c): the restriction of active or passive sales to end users by members of a selective distribution system operating at the retail level of trade
- (iv) Article 4(d): restrictions on cross-supplies within a selective distribution system
- (v) Article 4(e): restrictions on the supplier’s ability to supply components to third parties
- (G) Article 5: obligations in vertical agreements that are not exempt
- (H) Withdrawal of the block exemption by the Commission or by a Member State
- (I) Article 6: disapplication of the block exemption by Commission Regulation
- (J) Articles 7 and 8: market share and turnover
- (K) Articles 9 and 10: transitional provisions and entry into force
- 8 Vertical Agreements: Individual Application of Article 101(3)
- 9 Vertical Agreements: Enforcement
- 10 Regulation 461/2010 on Motor Vehicle Distribution
- 11 Sub-Contracting Agreements
- 12 UK Law
- 17 Abuse of dominance (1): non-pricing practices
- Preliminary Material
- 1 Introduction
- 2 Exclusive Dealing Agreements
- 3 Tying
- (A) Terminology and illustrations of tying
- (B) Policy considerations: arguments for and against tying
- (C) EU law
- (i) Does the accused undertaking have a dominant position?
- (ii) Has the dominant undertaking tied two distinct products?
- (iii) Was the customer coerced to purchase both the tying and the tied products?
- (iv) Is the tie capable of having an anti-competitive foreclosure effect?
- (v) Is there an objective justification for the tie?
- (D) UK law
- 4 Refusal to Supply
- (A) Preliminary comments
- (B) EU law
- (i) Vertical foreclosure: competitive harm in a downstream market
- (a) Is there a refusal to supply?
- (b) Does the accused undertaking have a dominant position in an upstream market?
- (c) Is the product to which access is sought indispensable to someone wishing to compete in the downstream market?
- (d) Would a refusal to grant access lead to the elimination of effective competition in the downstream market?
- (e) Is there an objective justification for the refusal to supply?
- (f) Remedies
- (ii) Horizontal foreclosure
- (iii) Refusal to supply on the basis of nationality
- (iv) Refusal to supply to prevent parallel imports and exports
- (i) Vertical foreclosure: competitive harm in a downstream market
- (C) UK case law
- 5 Non-Pricing Abuses that are Harmful to the Internal Market
- 6 Miscellaneous Other Non-Pricing Abuses
- 18 Abuse of dominance (2): pricing practices
- Preliminary Material
- 1 Introduction
- 2 Cost Concepts
- 3 Excessive Pricing
- (A) Arguments against direct control
- (B) When might it be legitimate for a competition authority to investigate excessive prices?
- (C) When is an excessive price abusive?
- 4 Conditional Rebates
- 5 Bundling
- 6 Predatory Pricing
- (A) Introduction
- (B) The Areeda and Turner test
- (C) EU law
- (i) The rule in AKZO v Commission and subsequent cases
- (ii) Intention to eliminate competition
- (iii) Is it necessary to show the possibility of recoupment?
- (iv) Defences
- (v) Are the standards of AVC and ATC always appropriate?
- (vi) The Commission’s approach to predation in its Guidance on Article 102 Enforcement Priorities
- (vii) Predatory price cutting and cross-subsidisation
- (viii) Selective price cutting but not below cost
- (D) UK law
- 7 Margin Squeeze
- (A) The economic phenomenon
- (B) EU law
- (i) Is the accused undertaking operating on an upstream and a downstream market?
- (ii) Does the accused undertaking hold a dominant position in the upstream market?
- (iii) Do the dominant firm’s upstream and downstream prices allow an undertaking as efficient as the dominant firm to compete on the downstream market?
- (iv) Is the margin squeeze capable of producing anti-competitive effects?
- (v) Is there an objective justification for the margin squeeze?
- (vi) The Commission’s decisional practice
- (C) UK law
- 8 Price Discrimination
- (A) The meaning of price discrimination
- (B) EU law
- (i) Does the accused undertaking have a dominant position?
- (ii) Has the dominant undertaking entered into equivalent transactions with other trading parties?
- (iii) Is the dominant undertaking guilty of applying dissimilar conditions to equivalent transactions?
- (iv) Could the discrimination place other trading parties at a competitive disadvantage?
- (v) Is there an objective justification for the discrimination?
- (C) UK law
- 9 Pricing Practices that are Harmful to the Single Market
- 19 The relationship between intellectual property rights and competition law
- Preliminary Material
- 1 Introduction
- 2 Licences of Intellectual Property Rights: Article 101
- 3 Technology Transfer Agreements: Regulation 316/2014
- (A) Article 1: definitions
- (B) Article 2: block exemption
- (C) Article 3: the market share cap
- (D) Article 4: hard-core restrictions
- (E) Article 5: excluded restrictions
- (F) Article 6: withdrawal in individual cases
- (G) Article 7: non-application of the Regulation
- (H) Article 8: application of the market share thresholds
- (I) Articles 9 to 11: other block exemptions, transitional period and period of validity
- 4 The Application of Article 101 to Other Agreements Relating to Intellectual Property Rights
- (A) Technology pools
- (B) Copyright pools
- (C) Settlements of litigation
- (D) Concerted refusal to license intellectual property rights
- 5 Article 102 and Intellectual Property Rights
- 6 UK Law
- 20 Mergers (1): introduction
- Preliminary Material
- 1 Introduction
- 2 Terminology
- 3 Merger Activity
- 4 The Proliferation of Systems of Merger Control
- 5 Why Do Firms Merge?
- 6 What is the Purpose of Merger Control?
- 7 Designing a System of Merger Control
- 21 Mergers (2): EU law
- Preliminary Material
- 1 Introduction
- 2 Overview of EU Merger Control
- 3 Jurisdiction
- (A) Article 3: meaning of a concentration
- (B) Article 1: concentrations having a Union dimension
- (C) Article 21: one-stop merger control
- (D) Article 4(4) and Article 9: referral of concentrations having a Union dimension to the competent authorities of the Member States
- (E) Article 4(5) and Article 22: referral of concentrations not having a Union dimension by Member States to the Commission
- (F) Article 21(4): legitimate interest clause
- (G) Defence
- 4 Notification, Suspension of Concentrations, Procedural Timetable and Powers of Decision
- 5 Substantive Analysis
- (A) Adoption of the ‘significant impediment to effective competition’ test
- (B) Publication of merger guidelines
- (C) Market definition
- (D) Horizontal mergers
- (E) Non-horizontal mergers
- (F) Articles 2(4) and 2(5) of the EUMR: full-function joint ventures and ‘spillover effects’
- (G) Contractual restrictions directly related and necessary to a merger: ‘ancillary restraints’
- 6 Remedies
- 7 Powers of Investigation and Enforcement
- 8 Judicial Review
- 9 International Cooperation
- 10 The EUMR in Practice
- 22 Mergers (3): UK law
- Preliminary Material
- 1 Introduction
- 2 Overview of UK Merger Control
- 3 The CMA’s Duty to Make References: Phase 1 Investigations
- (A) Duty to make references: completed mergers
- (B) Duty to make references: anticipated mergers
- (C) Relevant merger situations
- (D) CMA procedure in Phase 1
- 4 Determination of References by the CMA: Phase 2 Investigations
- (A) The Phase 2 Inquiry Group and case team
- (B) Questions to be decided in relation to completed mergers
- (C) Questions to be decided in relation to anticipated mergers
- (D) Investigations and reports
- (E) Duty to remedy the anti-competitive effects of mergers
- (F) Time limits for the implementation of remedies
- (G) CMA procedure in Phase 2
- 5 The ‘Substantial Lessening of Competition’ Test
- 6 Enforcement
- (A) Initial enforcement orders: Phase 1 investigations
- (B) Interim restrictions and powers: Phase 2 investigations
- (C) ‘Final powers’ or ‘remedies’
- (i) Schedule 8 to the Enterprise Act
- (ii) General restrictions on conduct
- (iii) General obligations to be performed
- (iv) Acquisitions and divisions
- (v) Supply and publication of information
- (vi) National security, media and financial stability mergers
- (vii) Monitoring compliance and determination of disputes
- (viii) The CMA’s approach to remedies
- (ix) Examples of Phase 2 remedies
- (D) Enforcement functions of the CMA
- 7 Supplementary Provisions
- 8 The Merger Provisions in Practice
- 9 ‘Public Interest Cases’, ‘Other Special Cases’ and Mergers in the Water Industry
- 23 Particular sectors
- 1 Competition policy and economics
- Further Material
