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Oxford Law Citator
Contents
Expand All
Collapse All
Preliminary Material
Preface to the ninth edition
New to this edition
Contents
Table of treaties and conventions
Table of EU legislation
Regulations
Directives
Rules
Table of statutes and statutory instruments
National legislation
Australia
Austria
Canada
China
France
Germany
India
Ireland
Japan
Mexico
South Africa
United Kingdom
Secondary legislation
United States
Table of CMA reports, decisions and publications
Decisions
Publications
Reports
Table of guidelines, guidance and other publications
International bodies
European Union
OECD>
National bodies
Australia
Canada
New Zealand
United Kingdom
United States
Table of cases
Table of European Cases
Commission Decisions
European Court of Justice
Numerical Table of General Court Cases
Alphabetical Table of General Court Cases
Numerical Table of Court of Justice Cases
Alphabetical Table of Court of Justice Cases
European Ombudsman
Opinions of the Court of Justice
International courts and tribunals
European Court of Human Rights
EFTA
National courts and tribunals
Australia
Austria
Bulgaria
Canada
Czech Republic
Denmark
France
Germany
Hungary
Ireland
Italy
Lithunania
Netherlands
Norway
Russia
Serbia
Singapore
Spain
Switzerland
United Kingdom
Competition Appeal Tribunal
OFCOM
OFGEM
OFT
OFTEL
OFWAT
Office of Rail and Road (ORR)
United States
FTC
List of abbreviations
Main Text
1 Competition policy and economics
Preliminary Material
1 Introduction
(A) The growth of competition law
(B) Competition law and economics
(C) Plan of this chapter
2 Overview of the Practices Controlled by Competition Law
3 The Theory of Competition
(A) The benefits of competition
(i) Allocative efficiency
(ii) Productive efficiency
(iii) Dynamic efficiency
(B) The harmful effects of monopoly
(C) Questioning the theory of perfect competition
(i) The model of perfect competition is based on assumptions unlikely to be observed in practice
(ii) Other problems with 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
(a) Network effects
(b) Two-sided markets
(c) Network effects and competition policy
(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
(A) Goals of competition law
(i) Consumer protection
(ii) Redistribution
(iii) Protecting competitors
(iv) Unfair competition
(v) Other issues
(vi) The single market imperative
(B) Competition advocacy and public restrictions of competition
5 Market Definition and Market Power
(A) Market definition
(B) Circumstances in which it is necessary to define the relevant market
(i) EU competition law
(ii) UK law
(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
(a) Evidence of substitution in the recent past
(b) Quantitative tests
(c) Views of customers and competitors
(d) Marketing studies and consumer surveys
(e) Barriers and costs associated with switching demand to potential substitutes
(f) Different categories of customers and price discrimination
(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
(i) Actual competitors
(a) Market shares
(b) Market concentration and the Herfindahl-Hirschman Index
Example 1
Example 2
Example 3
(ii) Potential competitors
(iii) Countervailing buyer power
(iv) Summary
(H) A final reflection on market shares
2 Overview of EU and UK competition law
Preliminary Material
1 Introduction
2 EU Law
(A) The EU Treaties
(i) The competition chapter in the TFEU
(ii) The single market imperative
(iii) Economic and monetary union
(iv) The modernisation of EU competition law
(B) Institutions
(i) Council of the European Union
(ii) European Commission
(iii) General Court
(iv) Court of Justice
(v) Advisory Committee on Restrictive Practices and Dominant Positions
(vi) Advisory Committee on Concentrations
(vii) National competition authorities
(viii) National courts
(ix) European Parliament
(C) European Economic Area
(D) Modelling of domestic competition law on Articles 101 and 102
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
(a) Appointments
(b) Amendment of legislation, the adoption of delegated legislation and the making or approval of guidance
(c) Receipt of performance report
(d) Involvement in individual cases
(ii) The Lord Chancellor
(iii) The CMA
(a) 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
(a) Establishment of the CAT
(b) Functions of the CAT
(c) Rules
(d) Reform
(vii) Civil courts
(viii) Criminal courts
4 The Relationship Between EU Competition Law and National Competition Laws
(A) Introduction
(B) Regulation 1/2003
(i) Obligation to apply Articles 101 and 102
(ii) Conflicts: Article 101
(iii) Conflicts: Article 102
(iv) Protection of ‘other legitimate interests’
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
(i) Need to adopt a functional approach
(ii) ‘Engaged in an economic activity’
(a) Offering goods or services on a given market is an economic activity
(b) No need for a profit-motive or economic purpose
(c) ‘Regardless of the legal status of the entity and the way in which it is financed’
(iii) Activities that are not economic
(a) Solidarity
(b) Activities connected with the exercise of the powers of a public authority are not economic
(c) Procurement that is ancillary to a non-economic activity is not economic
(iv) The professions
(v) Employees, trades unions and collective labour relations
(a) Employees
(b) Trades unions
(c) Collective labour relations
(B) ‘Associations of undertakings’
(i) Basic definition
(ii) Need to adopt a functional approach
(C) The ‘single economic entity’ doctrine
(i) Parent and subsidiary: the basic rule
(ii) The Viho judgment
(iii) The test of control
(a) Parent and wholly-owned subsidiaries
(b) Majority shareholders
(c) Minority shareholders
(d) Parents of a joint venture
(iv) Decisions where the single economic entity doctrine did not apply
(v) Implications of the 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
(a) AEG-Telefunken v Commission; Ford v Commission
(b) Subsequent cases prior to Bayer
(c) Bayer v Commission
(d) Cases following Bayer
(e) Comment
(B) Decisions by associations of undertakings
(C) Concerted practices
(i) Meaning of concerted practice
(ii) Must a concerted practice have been put into effect?: the need for a ‘causal connection’
(iii) The burden of proof
(iv) Concluding comment on concerted practices
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
(i) ‘Object or effect’ to be read disjunctively
(ii) The ‘object’ and ‘effect’ boxes
(D) Agreements that have as their object the prevention, restriction or distortion of competition
(i) Meaning of ‘object’
(ii) The legal test for identifying restrictions by object
(a) The expansion of the object box
(b) Groupement des Cartes Bancaires
(c) Comment
(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
(a) Price fixing and exchanges of information in relation to future prices
(b) Market sharing, quotas, collective exclusive dealing
(c) Controlling outlets; export bans
(d) Allianz Hungária Biztosító
(e) Benchmark manipulation
(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
(a) Objectively necessary agreements
(b) Objectively necessary restrictions
(c) MasterCard v Commission
(d) Comment
(vii) Regulatory ancillarity: the judgment of the Court of Justice in Wouters
(a) Why was Article 101(1) not applicable?
(b) The relationship between the judgment in Wouters and earlier case law of the EU Courts
(c) How broad is the rule in Wouters?
(d) Could the Court of Justice in Wouters have reached the same conclusion by a different route?
(viii) The application of Article 101(1) to sporting rules
(ix) Have the EU Courts embraced a ‘rule of reason’?
(a) The rule of reason in US law
(b) The judgment of the General Court in Métropole
(c) Comment
(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
(A) Introduction
(B) The Commission’s Notice on Agreements of Minor Importance
(i) Part I of the Notice: introductory paragraphs
(ii) Part II of the Notice: the threshold
(iii) Part II of the Notice: the treatment of object restrictions
(C) Other examples of non-appreciability
6 The Effect on Trade Between Member States
(A) The effect on trade criterion
(i) General principles
(ii) The concept of ‘trade between Member States’
(iii) The notion ‘may affect’
(iv) The concept of appreciability
(a) Small and medium-sized businesses
(b) A negative rebuttable presumption of non-appreciability
(c) A positive rebuttable presumption of appreciability
(B) The application of the effect on trade criterion to particular agreements and conduct
7 Checklist of Agreements that Fall Outside Article 101(1)
4 Article 101(3)
Preliminary Material
1 Introduction
(A) Burden and standard of proof
(B) The conditions of Article 101(3) are cumulative
(C) Any type of agreement can be defended under Article 101(3)
(i) Restrictions of competition by object and Article 101(3)
(ii) Fixing prices and Article 101(3)
(D) Under-application of Article 101(3)
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
(i) A narrow view of Article 101(3)
(ii) A broader approach to Article 101(3)
(iii) Comment
(iv) The Commission’s approach in the Article 101(3) Guidelines
(a) Cost efficiencies
(b) Qualitative efficiencies
(B) Third condition of Article 101(3): indispensability of the restrictions
(i) The efficiencies must be specific to the agreement
(ii) The indispensability of individual restrictions
(C) Second condition of Article 101(3): fair share for consumers
(i) Cost efficiencies
(ii) Qualitative efficiencies
(D) Fourth condition of Article 101(3): no elimination of competition in a substantial part of the market
(i) The relationship between Article 101(3) and Article 102
(ii) Determining whether competition will be substantially eliminated
(E) Judicial review by the General Court
3 Regulation 1/2003
(A) The Commission’s former monopoly over the grant of individual exemptions
(B) The end of the system of notification for individual exemption
(C) Self-assessment
(D) Decision-making under Article 101(3)
(E) Notification and individual exemptions under domestic law
4 Block Exemptions
(A) Role of block exemptions
(B) Vires and block exemptions currently in force
(i) Council Regulation 19/65
(ii) Council Regulation 2821/71
(iii) Council Regulation 1534/91
(iv) Council Regulation 169/2009
(v) Council Regulation 246/2009
(vi) Council Regulation 487/2009
(C) The format of block exemptions
(D) Expiry of block exemptions
(E) Future of 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
(A) Actual competitors
(i) Statutory monopolies
(ii) The relevance of market shares
(a) The Court of Justice’s judgment in Hoffmann-La Roche v Commission
(b) The AKZO presumption of dominance where an undertaking has a market share of 50% or more
(c) Findings of dominance below a market share of 50%
(B) Potential competitors
(i) Legal barriers
(ii) Economic advantages
(iii) Costs and network effects
(iv) Conduct
(v) Performance
(C) Countervailing buyer power
(D) Previous findings of dominance
(E) The degree of market power and super-dominance
7 A Substantial Part of the Internal Market
8 Abuse
(A) Introduction
(B) Four preliminary points
(i) The ‘special responsibility’ of dominant firms
(ii) Article 102 does not contain an exhaustive list of what amounts to abusive behaviour
(iii) False positives and false negatives
(iv) Single and continuous abuse
(C) What is the purpose of Article 102?
(i) Protection of competitors or protection of competition?
(ii) Article 102 protects competition; and competition is for the benefit of consumers
(D) Jurisprudence on the meaning of abuse
(i) Hoffmann-La Roche v Commission
(ii) Competition on the merits
(E) Are there or should there be any per se rules under Article 102?
(i) Are there any per se rules under Article 102?
(ii) Recent case law and decisions do require effects analysis
(iii) De minimis doctrine under Article 102?
(F) Exploitative, exclusionary and single market abuses
(G) Exploitative abuses
(H) Exclusionary abuses
(i) Continental Can v Commission
(ii) Causation
(iii) Horizontal and vertical foreclosure
(iv) The dominant position, the abuse and the effects of the abuse may be in different markets
(a) Michelin v Commission
(b) Commercial Solvents
(c) De Poste-La Poste
(d) Télémarketing
(e) Sealink/B&I—Holyhead: Interim Measures
(f) British Gypsum v Commission
(g) Tetra Pak II
(v) How is effects analysis conducted in practice?
(a) Selecting the right cases
(b) What standard of proof?
(c) What evidence?
(vi) Examples of exclusionary abuses
(I) Abuses that are harmful to the single market
9 Defences
(A) Objective justification
(B) Efficiencies
(C) Abuse of dominance and property rights
(D) Burden of proof
10 The Consequences of Infringing Article 102
(A) Public enforcement
(B) Private enforcement
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
(i) The INNO doctrine
(ii) Unsuccessful application of the INNO doctrine
(iii) Successful application of the INNO doctrine
(a) BNIC v Yves Aubert
(b) Vlaamse Reisbureaus v Sociale Dienst
(c) Ahmed Saeed
(d) Consorzio Industrie Fiammiferi
(e) Synthesis
(iv) INNO doctrine applies only where there is an infringement of Article 101
(D) Application of the case law to lawyers’ fees
3 Article 106 TFEU—Compliance with the Treaties
(A) Article 106(1)
(i) Undertakings
(ii) Public undertakings
(iii) Undertakings with ‘special or exclusive rights’
(a) Exclusive rights
(b) Special rights
(iv) ‘Measures’
(v) The obligations on Member States under Article 106(1)
(vi) The judgments of 1991
(a) Höfner & Elser v Macrotron
(b) ERT v Dimotiki
(c) Merci Convenzionali Porto di Genova v Siderurgica Gabrielli
(d) RTT v GB-Inno-BM
(vii) The Corbeau judgment
(viii) Making sense of the case law on Article 102 in conjunction with Article 106(1)
(a) Manifest inability to meet demand
(b) Conflict of interest
(c) Reservation of an ancillary activity
(d) Corbeau
(e) Discrimination
(f) Excessive pricing
(ix) Remedies and direct effect
(B) Article 106(2)
(i) Services of general economic interest
(ii) Undertakings having the character of a revenue-producing monopoly
(iii) Scope of the exception: obstruction of the performance of the tasks assigned
(a) Unsuccessful claims based on Article 106(2)
(b) Successful claims based on Article 106(2)
(iv) Adverse development of trade
(v) Direct effect
(C) Article 106(3)
(i) Decisions
(ii) Directives
(iii) Judicial review of the Commission’s powers under Article 106(3)
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
(A) The content of Regulation 1/2003
(B) Supporting measures
2 The Commission’s Enforcement Powers under Regulation 1/2003
(A) Burden and standard of proof
(B) Chapter II: powers
(i) Article 4: powers of the Commission
(ii) Article 5: powers of the NCAs
(iii) Article 6: powers of the national courts
(C) Chapter III: Commission decisions
(i) Article 7: finding and termination of an infringement
(a) Behavioural remedies
(b) Structural remedies
(c) Past infringements
(d) Complainants
(ii) Article 8: interim measures
(iii) Article 9: commitments
(a) Article 9: substantive rules
(b) Article 9: procedure
(c) Article 9: practical considerations
(d) Comment
(iv) Article 10: finding of inapplicability
(v) Informal guidance
(vi) Settlements of cartel cases
(a) Introduction
(b) Benefits of a system of settlements
(c) Settlements procedure
(d) Settlement procedure in practice
(D) Chapter IV: cooperation
(i) Article 11: cooperation between the Commission and the NCAs
(ii) Article 12: exchange of information
(a) Free movement of information
(b) Restrictions on the use of information
(c) The exchange of information with third countries
(iii) Article 13: suspension or termination of proceedings
(iv) Article 14: Advisory Committee
(v) Article 15: cooperation with national courts
(vi) Article 16: uniform application of EU competition law
(E) Chapter V: powers of investigation
(i) Article 17: investigations into sectors of the economy and into types of agreements
(ii) Article 18: requests for information
(a) The Commission’s powers
(b) Privilege against self-incrimination
(c) Legal professional privilege
(iii) Article 19: power to take statements
(iv) Article 20: the Commission’s powers of inspection
(a) Voluntary investigations
(b) Mandatory investigations
(c) The involvement of Member States
(v) Article 21: inspection of other premises
(vi) Article 22: investigations by NCAs
(F) Chapter VI: penalties
(i) Article 23: fines
(ii) The Commission’s guidelines on the method of setting fines
(a) Basic amount of the fine
(b) Adjustments to the basic amount
(iii) The Commission’s Leniency Notice
(a) Section I: introduction
(b) Section II: immunity from fines
(c) Section III: reduction of fines
(d) Section IV: corporate statements
(e) Appeals by leniency applicants
(iv) Article 24: periodic penalty payments
(G) Chapter VII: limitation periods
(i) Article 25: limitation periods for the imposition of penalties
(ii) Article 26: limitation period for the enforcement of penalties
(H) Chapter VIII: hearings and professional secrecy
(i) Article 27: hearing of the parties, complainants and others
(a) The provisions of Article 27
(b) The conduct of proceedings
(c) European Ombudsman
(d) A typical case
(e) The position of complainants
(ii) Article 28: professional secrecy
(I) Chapter IX: block exemption regulations
(J) Chapter X: general provisions
(i) Article 30: publication of decisions
(ii) Article 31: review by the EU Courts
(K) Chapter XI: transitional, amending and final provisions
(i) Article 34: transitional provisions
(ii) Article 35: designation of competition authorities of Member States
(iii) Articles 36–42: miscellaneous amendments
(iv) Article 43: repeal of Regulations 17 and 141
(v) Article 44: Report on the functioning of Regulation 1/2003
3 Regulation 1/2003 in Practice
(A) The European Competition Network
(B) Case allocation under Regulation 1/2003
(C) ‘Soft’ convergence
(D) Leniency
(E) Ten years of Regulation 1/2003 and possible reform
4 Judicial Review
(A) Article 265: failure to act
(B) Article 263: action for annulment
(i) Standing
(ii) Acts
(iii) Grounds of review
(iv) Actions for damages
(C) Article 261: penalties
(D) Expedited procedure
(E) Interim measures
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
(i) Courage Ltd v Crehan
(ii) Manfredi
(iii) Subsequent cases
(B) The movement towards reform
(C) The Damages Directive
(i) A right to full compensation
(ii) Quantum
(iii) Passing on
(iv) Disclosure of evidence
(a) Article 5: disclosure of evidence
(b) Article 6: disclosure of evidence in the file of a competition authority
(c) Articles 7 and 8: limits on the use of evidence and penalties
(v) Effect of national decisions, limitation periods and joint and several liability
(a) Article 9: effect of national decisions
(b) Article 10: limitation rules
(c) Article 11: joint and several liability
(D) The relationship between the Commission and domestic courts
(i) Article 6: powers of the national courts
(ii) Article 15: cooperation with national courts
(a) Requests by national courts for information or an opinion
(b) Submission of judgments to the Commission
(c) Observations by national competition authorities and the Commission
(d) Wider national powers
(iii) Article 16: uniform application of EU competition law
(a) The effect of Commission decisions
(b) Parallel proceedings
(E) Private international law
(i) The Brussels Regulation
(a) Anchor defendants
(b) Article 29: lis pendens and the ‘Italian torpedo’
(ii) Rome II
(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
(i) High Court proceedings
(ii) CAT proceedings
(iii) Which forum to choose?
(F) Decisions of the European Commission, the CMA and other NCAs
(i) Section 58A Competition Act
(ii) Decisions of NCAs
(iii) Section 58: findings of fact by the CMA
(G) Contribution
(H) Collective redress in the UK
(i) High Court: group litigation orders and representative actions
(ii) CAT: collective proceedings
(a) Opt-in and opt-out collective proceedings
(b) Collective proceedings orders
(c) Damages in collective proceedings
(d) Settlements and redress schemes
(e) Collective proceedings in practice
(I) Limitation rules
(J) Mediation
(K) Private enforcement of competition law in practice in the UK
(i) Interim relief
(ii) Damages
(iii) Declarations and other relief
(iv) Unsuccessful claims
4 Competition Law as a Defence
(A) Article 101(2)
(i) The sanction of voidness
(ii) Eco Swiss China Time Ltd v Benetton
(B) The ‘problem’ of Article 101(3) and the Commission’s former role in relation to individual exemptions
(C) The classic ‘Euro-defence’
(D) Severance
(E) Void or illegal?
(F) Transient voidness
(G) Article 102
(H) Third party as defendant
5 Arbitration
9 Competition Act 1998: substantive provisions
Preliminary Material
1 Introduction
2 The Competition Act 1998—Overview
(A) Outline of the Act
(i) Part I: the Chapter I and Chapter II prohibitions
(ii) Part II: European investigations
(iii) Part III: amendments to the Fair Trading Act 1973
(iv) Part IV: miscellaneous amendments
(B) CMA guidelines
(C) Other information about the Competition Act
(D) Delegated legislation under the Competition Act
(E) Literature
3 The Chapter I Prohibition
(A) Section 2(1): the Chapter I prohibition
(i) ‘Subject to section 3’
(ii) Agreements between undertakings, decisions by associations of undertakings or concerted practices
(iii) ‘Undertakings’
(a) Basic definition
(b) Need to adopt a functional approach
(c) Economic activity
(d) Non-economic activity
(e) Undertaking as a single economic entity
(f) Undertakings, not persons
(iv) ‘Agreements’
(v) ‘Decisions by associations of undertakings’
(vi) ‘Concerted practices’
(a) Basic definition
(b) Direct contact between competitors
(c) Indirect contact between competitors
(vii) ‘Single overall agreement’
(viii) ‘Object or effect the prevention, restriction or distortion of competition within the UK’
(a) General comments
(b) Restriction of competition by object
(c) Restriction of competition by effect
(d) Ancillary restraints
(ix) Appreciability
(a) Object restrictions
(b) Effect restrictions
(x) Applicable law and territorial scope
(B) Section 2(2): illustrative list
(C) Section 2(3): extraterritorial application
(D) Section 2(4): voidness
(i) Severance
(ii) Void or illegal?
(iii) Transient voidness
(E) Sections 2(5) and 2(6): interpretation
(F) Section 2(7): the UK
(G) Section 2(8): the ‘Chapter I prohibition’
(H) The Chapter I prohibition: excluded agreements
(i) Schedule 1: mergers and concentrations
(a) Relationship of the Chapter I and Chapter II prohibitions with UK merger control
(b) Newspaper mergers
(c) Clawback
(d) Protected agreements
(e) Relationship of the Chapter I and Chapter II prohibitions with EU merger control
(f) No clawback
(ii) Schedule 2: competition scrutiny under other enactments
(a) Communications Act 2003
(b) Financial Services and Markets Act 2000
(c) Legal Services Act 2007
(d) No power to amend Schedule 2
(iii) Schedule 3: general exclusions
(a) Planning obligations
(b) Section 21(2) Restrictive Trade Practices Act 1976
(c) EEA regulated markets
(d) Services of general economic interest
(e) Compliance with legal requirements
(f) Avoidance of conflict with international obligations
(g) Public policy
(h) Coal and steel
(i) Agricultural products
(iv) Professional rules
(v) Section 50: vertical agreements
(vi) Section 50: land agreements
(I) The Chapter I prohibition: exemptions
(i) Introduction
(ii) Exemption criteria
(a) Burden of proof
(b) Scope of section 9(1)
(c) The application of section 9(1) to restrictions by object
(d) The application of section 9(1) to restrictions by effect
(iii) Block exemptions
(iv) Parallel exemptions
4 The Chapter II Prohibition
(A) The prohibition
(i) Section 18
(ii) ‘The Chapter II prohibition’
(iii) ‘Undertakings’
(iv) Affecting trade within the UK
(v) Voidness
(vi) Market size
(vii) The relevant market
(viii) Assessing dominance
(a) Market shares
(b) Entry barriers
(c) Other factors in the assessment of market power
(d) Super-dominance
(ix) Abuse
(a) Assessing abuse
(b) Objective justification
(c) Efficiencies
(d) Conduct of minor significance
(e) Article 3(2) Regulation 1/2003
(B) Exclusions
(i) Exclusions for mergers subject to UK or EU merger control
(ii) Financial Services and Markets Act 2000
(iii) Other exclusions
5 ‘Governing Principles Clause’: Section 60 of the Competition Act 1998
(A) Section 60(1)
(i) ‘So far as is possible’
(ii) ‘Having regard to any relevant differences’
(iii) ‘Corresponding questions’
(iv) ‘Questions arising … in relation to competition’
(B) Section 60(2) and (3)
(i) The duty of consistency
(ii) Having regard to decisions or statements of the Commission
(iii) References to the Court of Justice
(C) Regulation 1/2003
6 The Competition Act 1998 in Practice
(A) Total number of infringement decisions
(B) Findings of infringement by the CAT
(C) Appeals against infringement decisions
(D) Total number of non-infringement decisions
(E) Appeals against non-infringement and case-closure decisions
(F) Decisions of sectoral regulators
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
(i) Written inquiries
(ii) Power to ask questions
(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
(i) Legal professional privilege
(ii) Self-incrimination
(iii) Confidentiality
(iv) Human Rights Act 1998 and Police and Criminal Evidence Act 1984 (‘PACE’)
(H) Sanctions
(i) Penalties: failure to comply with requirements
(ii) Offences
(I) EU investigations
3 Complaints
4 Opinions and Informal Advice
(A) Opinions
(B) Informal advice
5 Enforcement
(A) Procedure
(i) Statement of objections
(ii) Procedural Officer
(iii) Subsequent procedure
(B) Commitments
(C) Interim measures
(D) Directions
(i) Can directions be structural?
(ii) The directions provisions in practice
(iii) Persons who may be the subject of directions
(iv) Enforcement of compliance with directions
(E) Penalties
(i) Maximum amount of a penalty
(ii) The Guidance as to the appropriate amount of a penalty
(iii) The CMA’s six-step approach
(iv) Immunity for small agreements and conduct of minor significance
(F) Leniency
(i) Terminology
(ii) Key features of the UK leniency system
(iii) Eligibility for leniency
(a) Type A immunity
(b) Type B immunity/leniency
(c) Type C leniency
(d) The coercer test
(iv) Actions before applying for leniency
(v) Checking the availability of leniency and initial application
(vi) Cooperation throughout investigation
(vii) Leniency and no-action agreements
(viii) Disclosure and information
(ix) Other issues relating to criminal proceedings
(x) Other procedural issues: leniency plus/penalties
(xi) Bad faith/withdrawal of leniency/revocation of no-action letters
(G) Settlements
(H) The penalty provisions in practice
(i) Statistical analysis
(ii) Appeals against decisions imposing penalties
(iii) Aggravating factors
(iv) The CAT can increase penalties
(v) Infringement decisions in which no penalty was imposed
6 The Cartel Offence and Company Director Disqualification
(A) The cartel offence
(i) Definition of the cartel offence
(ii) Prosecution guidance
(a) Evidential stage
(b) Public interest stage
(iii) Circumstances in which the cartel offence is not committed
(iv) Defences
(v) Powers of investigation and search
(a) Powers to require information and documents
(b) Power to enter premises under a warrant
(vi) Powers of surveillance
(a) Enterprise Act: intrusive surveillance and property interference
(b) Further powers: directed surveillance, covert human intelligence sources and access to communications data
(c) Codes of Practice
(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
(i) Grounds for disqualification
(ii) Procedure
(C) Conspiracy to defraud at common law
7 Concurrency
(A) The Concurrency Regulations and the Concurrency Guidance
(B) UK Competition Network
(C) The concurrency arrangements in practice
(D) Annual concurrency reports
8 Appeals
(A) ‘Appealable decisions’
(i) Successful appeals against explicit non-infringement decisions
(ii) Successful appeals against implicit non-infringement decisions
(iii) Unsuccessful appeals by third party complainants
(B) The Competition Appeal Tribunal Rules 2015
(C) Procedure before the CAT
(D) Appeal on the merits
(E) The powers of the CAT
(F) Costs
(G) Appeals from the CAT to the Court of Appeal and from the Court of Appeal to the Supreme Court
9 Article 267 References
(A) Can an Article 267 reference be made where a court or tribunal is applying the Competition Act 1998?
(B) Which courts or tribunals in the UK can make an Article 267 reference in a case under the Competition Act 1998?
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
(A) Purpose of super-complaints
(B) Super-complainants
(C) Guidance
(D) Procedure
(E) Outcomes of super-complaints
4 Market Studies
(A) Guidance
(B) Purpose of market studies
(C) Procedure
(i) Identifying markets to study
(ii) Market study notice
(iii) Stages of a market study
(iv) Market study report
(D) Outcomes of market studies
(E) Examples of 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
(a) Relationship between the Competition Act and market investigations
(b) Relationship with Regulation 1/2003
(c) Scale of the problem
(d) Availability of remedies
(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
(i) The CMA Panel and market reference groups
(ii) Questions to be decided
(a) Ordinary references
(b) Cross-market references
(iii) Procedure
(iv) Investigations and reports
(v) Duty to remedy adverse effects
(vi) Market investigation guidelines
6 Public Interest Cases
(A) Issuing intervention notices
(B) Restricted public interest references
(C) Full public interest references
7 Enforcement
(A) Undertakings and orders
(i) Undertakings in lieu of a reference
(ii) Interim undertakings and orders
(iii) Final powers
(B) Review of enforcement undertakings and orders
8 Supplementary Provisions
(A) Regulated markets
(B) Consultation, information and publicity
(C) Powers of investigation and penalties
(D) Reports
(E) Review of decisions under Part 4 of the Enterprise Act
9 The Market Investigation Provisions in Practice
(A) Meaning of ‘adverse effect on competition’
(i) Market definition
(ii) Counterfactual
(iii) Theories of harm
(iv) Performance and prices
(B) Findings of adverse effects on competition
(C) Remedies
(D) Evaluation of the system
10 Orders and Undertakings Under the Fair Trading Act 1973
12 The international dimension of competition law
Preliminary Material
1 Introduction
2 Extraterritoriality: Theory
(A) Subject-matter jurisdiction
(B) Enforcement jurisdiction
3 The Extraterritorial Application of US Antitrust Law
(A) The Alcoa, Hartford Fire Insurance and Empagran cases
(B) Comity
(C) The extraterritorial application of US antitrust law to gain access to foreign markets
4 The Extraterritorial Application of EU Competition Law
(A) Articles 101 and 102: subject-matter jurisdiction
(i) The single economic entity doctrine
(ii) The implementation doctrine
(iii) The qualified effects doctrine
(B) Articles 101 and 102: enforcement jurisdiction
(i) Initiating proceedings
(ii) Information and investigations
(iii) Final decisions
(C) EU Merger Regulation
(i) The jurisdictional criteria in the EUMR
(ii) Gencor v Commission
5 The Extraterritorial Application of UK Competition Law
(A) Competition Act 1998
(i) Chapter I prohibition
(ii) Chapter II prohibition
(B) Enterprise Act 2002
(i) Market studies and market investigations
(ii) Mergers
(iii) The cartel offence
6 Resistance to Extraterritorial Application of Competition Law
(A) Introduction
(B) Protection of Trading Interests Act 1980
7 The Internationalisation of Competition Law
(A) ICN
(B) OECD
(C) WTO
(D) UNCTAD
(E) International cooperation agreements
(F) The EU’s dedicated cooperation agreements on competition enforcement
(i) The EU/US Cooperation Agreement of 23 September 1991
(ii) The Positive Comity Agreement of 4 June 1998
(iii) The cooperation agreements in practice
(iv) Memoranda of Understanding on Cooperation
13 Horizontal agreements (1): cartels
Preliminary Material
1 Introduction
2 Widespread Consensus that Cartels Should be Prohibited
(A) The global agenda
(B) The OECD and the fight against cartels
(C) The ICN and the fight against cartels
(D) Recent action against cartels around the world
3 EU Policy Towards Cartels
(A) Statistics
(B) Concealment of cartels
(C) Proof of participation in a cartel
(D) Facilitators
(E) Single overall agreement
(F) Public distancing from a cartel
(G) Recent decisions against cartels
(H) Judicial review
4 Horizontal Price Fixing
(A) Article 101(1)
(i) Price fixing in any form is caught
(ii) Price fixing in any context is caught
(iii) Price signalling
(iv) Algorithmic collusion
(v) Horizontal price fixing in conjunction with other infringements of Article 101(1)
(vi) Buyers’ cartels
(vii) Joint selling agencies
(B) Article 101(3)
(C) Collective dominance
5 Horizontal Market Sharing
(A) Article 101(1)
(i) Market sharing in any form is caught
(ii) Market sharing in any context is caught
(iii) Market sharing in conjunction with other infringements of Article 101(1)
(B) Article 101(3)
6 Quotas and Other Restrictions on Production
(A) Article 101(1)
(B) Article 101(3)
7 Collusive Tendering
(A) Collusive tendering takes many forms
(B) Article 101(1)
(C) Article 101(3)
8 Agreements Relating to Terms and Conditions
(A) Article 101(1)
(B) Article 101(3)
9 Exchanges of Information
(A) Introduction
(B) Arguments for and against exchanges of information
(C) Types of exchange of information
(i) Information exchange in support of a horizontal cooperation agreement
(ii) Information exchange in support of a cartel
(D) Agreement and/or concerted practice to exchange information
(E) Assessment under Article 101(1)
(i) Restriction of competition by object
(ii) Restrictions of competition by effect
(iii) The economic conditions on the relevant markets
(iv) Characteristics of the information exchanged
(F) Assessment under Article 101(3)
(G) Fines
10 Advertising Restrictions
(A) Article 101(1)
(B) Article 101(3)
11 Anti-Competitive Horizontal Restraints
12 UK Law
(A) Horizontal price fixing
(B) Agreements relating to terms and conditions
(C) Horizontal market sharing
(D) Quotas and other restriction on production
(E) Collusive tendering
(F) Exchanges of information
(G) Advertising restrictions
(H) Anti-competitive horizontal restraints
14 Horizontal agreements (2): oligopoly, tacit collusion and collective dominance
Preliminary Material
1 Introduction
2 The Theory of Oligopolistic Interdependence
(A) Outline of the theory
(i) The meaning of oligopoly and a warning about the term
(ii) The oligopoly problem
(iii) Terminology: ‘tacit collusion’; ‘conscious parallelism’; ‘tacit coordination’; ‘coordinated effects’
(iv) ‘Non-collusive oligopoly’
(v) The conditions needed for the successful exercise of collective market power
(B) Criticisms of the theory
(i) How interdependent are oligopolists?
(ii) Does the theory of oligopolistic interdependence reflect markets in the real world?
(iii) Why are some oligopolistic markets competitive?
(iv) How do oligopolists achieve a supra-competitive price?
(v) Why is a market oligopolistic in the first place?
(C) Possible ways of dealing with the oligopoly problem
(i) A structural approach
(ii) A behavioural approach
(iii) A regulatory approach
(iv) A market investigation approach
3 Article 101
(A) Does parallel behaviour amount to a concerted practice under Article 101?
(B) Article 101(1), the exchange of information and other facilitating practices
(C) Price signalling
(D) Article 101(3)
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
(i) Exploitative abuse of a collective dominant position
(ii) Exclusionary abuse of a collective dominant position
(iii) Individual abuse of a collective dominant position
5 UK Law
(A) Competition Act 1998
(B) Market studies and market investigations under the Enterprise Act 2002
(i) Market studies
(ii) Market investigations
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
(A) Introduction
(B) The case law and decisions on horizontal cooperation agreements
(C) The Guidelines on Horizontal Cooperation Agreements
(i) Actual and potential competitors
(ii) Purpose and scope of the Guidelines on Horizontal Cooperation Agreements
(iii) Basic principles for the assessment of horizontal cooperation agreements under Article 101
(a) Article 101(1)
(b) Article 101(3)
4 Information Exchange
5 Research and Development Agreements
(A) Market definition
(i) Existing product and technology markets
(ii) Competition in innovation (R&D efforts)
(iii) Market shares
(B) The application of Article 101(1) to R&D agreements
(i) R&D agreements that normally fall outside Article 101(1)
(ii) Main competition concerns
(iii) Restrictions by object
(iv) Restrictions by effect
(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
(A) The application of Article 101(1) to production agreements
(i) Main competition concerns
(ii) Restrictions by object
(iii) Restrictions by effect
(B) The application of Article 101(3) to production agreements
(C) The block exemption for specialisation agreements: Regulation 1218/2010
(i) Article 1: definitions
(ii) Article 2: exemption
(iii) Article 3: the market share threshold
(iv) Article 4: hard-core restrictions
(v) Article 5: application of the market share threshold
(vi) Article 6: transitional period
(vii) Article 7: period of validity
(viii) Withdrawal of the block exemption
7 Purchasing Agreements
(A) Application of Article 101(1) to joint purchasing agreements
(i) Main competition concerns
(ii) Restrictions by object
(iii) Restrictions by effect
(B) Application of Article 101(3) to joint purchasing agreements
8 Commercialisation Agreements
(A) The application of Article 101(1) to commercialisation agreements
(i) Main competition concerns
(ii) Restrictions by object
(iii) Restrictions by effect
(B) The application of Article 101(3) to commercialisation agreements
9 Standardisation Agreements
(A) The application of Article 101(1) to standardisation agreements
(i) Main competition concerns
(ii) Restrictions by object
(iii) A (fairly) safe harbour
(iv) Restrictions by effect
(B) The application of Article 101(3) to standardisation agreements
(C) The application of Article 101(1) to standard terms
(i) Restrictions by object
(ii) Restrictions by effect
(D) The application of Article 101(3) to standard terms
(E) Article 102 and standards
10 Other Cases of Permissible Horizontal Cooperation
(A) Restructuring agreements
(B) Insurance sector
(C) Banking sector
(D) Transport
11 The Application of the Chapter I Prohibition in the UK Competition Act 1998 to Horizontal Cooperation Agreements
(A) Introduction
(B) Decisions and judgments under the Competition Act
(C) Block exemption for ticketing agreements
16 Vertical agreements
Preliminary Material
1 Introduction
2 The Distribution Chain
3 Vertical Integration
(A) Arguments for and against vertical integration
(B) Non-application of Article 101 to agreements within a single economic entity
(C) Application of Article 102 to firms within a single economic entity
(D) Application of the EU Merger Regulation to vertical integration
4 Commercial Agents
(A) Non-application of Article 101 to agency agreements
(B) The Commission’s Vertical guidelines
(i) The criterion of risk
(a) Paragraphs 14 to 17 of the Vertical guidelines
(ii) Non-application of Article 101(1) to agency agreements
(iii) Application of Article 101(1) to agency agreements
(C) Application of Article 102 to agency agreements
5 Vertical Agreements: Competition Policy Considerations
(A) Introduction
(B) Vertical agreements: possible detriments to competition
(i) Inter-brand and intra-brand competition
(ii) Consten and Grundig v Commission
(iii) The single market imperative and intra-brand competition
(iv) The commentary in the Vertical guidelines on the negative effects of vertical restraints
(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
(i) The four steps involved in assessing vertical agreements under Article 101
(ii) Relevant factors for the assessment under Article 101(1)
(iii) Relevant factors for the assessment under Article 101(3)
(iv) Application of the methodology to particular types of agreement
(F) Direct and indirect export bans
(i) Direct export bans
(ii) Indirect export bans
(iii) Recent enforcement activity
(iv) Export bans falling outside Article 101(1) or satisfying Article 101(3)
(G) Application of Article 101(1) to assessment of other types of vertical agreements
(i) Single branding agreements
(a) Possible detriments to inter-brand competition
(b) Application of the block exemption to single branding agreements
(c) Factors to be considered in determining whether single branding agreements infringe Article 101(1)
(d) The application of Article 101(3)
(ii) Exclusive distribution agreements
(a) Possible detriments to intra-brand competition and to market integration
(b) Application of the block exemption to exclusive distribution agreements
(c) Factors to be considered in determining whether exclusive distribution agreements infringe Article 101(1)
(d) The application of Article 101(3)
(iii) Exclusive customer allocation agreements
(iv) Selective distribution agreements
(a) Purely qualitative selective distribution systems
(b) Selective distribution systems that are not purely qualitative
(c) Application of the block exemption to selective distribution systems
(d) The application of Article 101(3)
(v) Franchising agreements
(a) Pronuptia v Schillgalis
(b) Application of the block exemption to franchising
(vi) Exclusive supply agreements
(vii) Up-front access payments
(viii) Category management agreements
(ix) Tying agreements
(x) Pricing restrictions
(a) Minimum and fixed resale prices infringe Article 101(1)
(b) Minimum and fixed prices under Article 101(3)
(c) Recommended and maximum resale prices
(xi) Parity provisions
(a) Possible detriments to competition
(b) Possible benefits to competition
(c) Recent enforcement activity
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
(i) Why a market share test?
(ii) What market share?
(iii) Whose market share?
(iv) The Vertical guidelines
(v) Article 6
(F) Article 4: hard-core restrictions
(i) Article 4(a): resale price maintenance
(ii) Article 4(b): territorial and customer restrictions
(a) Article 4(b): the hard-core restriction
(b) Article 4(b): exceptions
(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
(i) Article 5(1)(a): non-compete obligations
(ii) Article 5(1)(b): post-term non-compete obligations
(iii) Article 5(1)(c): competing products in a selective distribution system
(H) Withdrawal of the block exemption by the Commission or by a Member State
(i) Article 29(1) of Regulation 1/2003: withdrawal by the Commission
(ii) Article 29(2) of Regulation 1/2003: withdrawal 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
(A) Vertical integration
(B) Commercial agents
(C) Vertical agreements under the Competition Act 1998
(i) The exclusion of vertical agreements from the Chapter I prohibition until 30 April 2005
(ii) Repeal of the exclusion for vertical agreements
(iii) Guidance on Vertical agreements
(iv) Decisional practice under the Competition Act
(a) Pricing restrictions
(b) Non-price restrictions
(D) Enterprise Act 2002
17 Abuse of dominance (1): non-pricing practices
Preliminary Material
1 Introduction
2 Exclusive Dealing Agreements
(A) EU law
(i) The application of Article 102 to exclusive purchasing agreements
(a) Meaning of exclusivity
(b) Judgments of the EU Courts
(c) The Commission’s approach to exclusive purchasing agreements
(ii) Article 102 applies to de facto as well as to contractual exclusivity
(iii) Is there an objective justification for a long-term supply agreement?
(B) UK law
(i) The UK courts’ approach to exclusive purchasing agreements
(ii) The UK competition authorities’ approach to exclusive purchasing 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?
(a) Hilti
(b) Tetra Pak
(c) Microsoft
(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
(a) Refusal to supply a distributor as a disciplining measure
(b) Refusal to supply a potential competitor in the supplier’s market
(c) Refusal to supply an existing competitor in the supplier’s market
(iii) Refusal to supply on the basis of nationality
(iv) Refusal to supply to prevent parallel imports and exports
(C) UK case law
5 Non-Pricing Abuses that are Harmful to the Internal Market
6 Miscellaneous Other Non-Pricing Abuses
(A) Harming the competitive structure of the market
(B) Vexatious litigation
(C) Preferential treatment
(D) Other cases
18 Abuse of dominance (2): pricing practices
Preliminary Material
1 Introduction
2 Cost Concepts
(A) Fixed costs and sunk costs
(B) Marginal cost
(C) Variable costs
(D) Avoidable costs
(E) Average variable cost (‘AVC’)
(F) Average avoidable cost (‘AAC’)
(G) Long-run incremental cost (‘LRIC’)
(H) Long-run average incremental cost (‘LRAIC’)
(I) Average total cost (‘ATC’)
(J) Stand alone cost
3 Excessive Pricing
(A) Arguments against direct control
(B) When might it be legitimate for a competition authority to investigate excessive prices?
(i) Imperfect markets
(ii) Excessive prices that are exclusionary or harmful to the single market
(C) When is an excessive price abusive?
(i) The price must be excessive and unfair
(ii) Is the price excessive?
(iii) Is the excessive price unfair?
(iv) EU cases on excessive pricing
(a) Commission cases
(b) Article 267 references to the Court of Justice
(v) UK cases on excessive pricing
(a) Decisions of competition authorities
(b) Private litigation and excessive pricing
4 Conditional Rebates
(A) Why is the law on conditional rebates controversial?
(i) Hoffmann-La Roche v Commission
(ii) Terminology
(iii) The controversy
(B) Intel v Commission
(i) The Commission’s decision
(ii) The judgment of the General Court
(iii) The Opinion of Advocate General Wahl
(iv) The judgment of the Court of Justice
(v) Remittal to the General Court
(C) Intel and the Commission’s Guidance on Article 102 Enforcement Priorities
(D) Unanswered questions after Intel
(i) The application of the as-efficient competitor test
(ii) Could a rebate above cost be unlawful?
(iii) Intel and the de minimis test
(E) UK law
5 Bundling
(A) EU law
(i) Rebates having a tying effect
(ii) ‘Across-the-board’ rebates
(iii) Delivered pricing as a tie-in
(iv) Bundling
(B) UK law
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
(a) Eurofix-Bauco/Hilti
(b) Irish Sugar v Commission
(c) Compagnie Maritime Belge v Commission
(d) Post Danmark I
(D) UK law
(i) Napp Pharmaceutical
(ii) The Aberdeen Journals case
(iii) EW&S
(iv) Cardiff Bus
(v) Cases where predatory pricing was not established
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
(i) Findings of unlawful margin squeeze
(ii) Rejections of complaints about margin squeezes
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
(A) Excessive pricing that impedes parallel imports and exports
(B) Geographic price discrimination
(C) Rebates that impede imports and exports
19 The relationship between intellectual property rights and competition law
Preliminary Material
1 Introduction
(A) Definitions
(B) Intellectual property rights and the single market
(C) Is there an inevitable tension between intellectual property rights and competition law?
2 Licences of Intellectual Property Rights: Article 101
(A) Introduction
(B) Typical terms in licences of intellectual property rights
(i) Territorial exclusivity
(ii) Royalties
(iii) Duration
(iv) Field of use restrictions
(v) Best endeavours and non-competition clauses
(vi) No-challenge clauses
(vii) Improvements
(viii) Tying and bundling
(ix) Prices, terms and conditions
(C) The application of Article 101(1) to licences of intellectual property rights
(i) Patent licences: territorial exclusivity
(ii) Patent licences: non-territorial restrictions
(iii) Know-how licences
(iv) Copyright licences
(v) Software licences
(vi) Trade mark licences
(vii) Licences of plant breeders’ rights
(viii) Sub-contracting agreements
(D) The application of Article 101(3) to licences of intellectual property rights
3 Technology Transfer Agreements: Regulation 316/2014
(A) Article 1: definitions
(B) Article 2: block exemption
(i) Many technology transfer agreements do not infringe Article 101(1)
(ii) If it is not forbidden, it is permitted
(iii) The exempted agreement must be bilateral
(iv) Duration
(v) Ancillary provisions in relation to other intellectual property rights
(vi) Relationship with other block exemptions
(C) Article 3: the market share cap
(i) Horizontal agreements
(a) Technology markets
(b) Product markets
(ii) Vertical agreements
(iii) Technology markets
(iv) Product markets
(v) Article 8: calculation of market shares and marginal relief
(vi) Examples
(D) Article 4: hard-core restrictions
(i) Agreements between competing undertakings: horizontal agreements
(a) Prices
(b) Output
(c) The allocation of markets and customers
(d) Exploitation by the licensee
(ii) Agreements between non-competing undertakings: vertical agreements
(a) Prices
(b) Territories and customer groups
(c) Restrictions in selective distribution systems
(E) Article 5: excluded restrictions
(F) Article 6: withdrawal in individual cases
(i) Article 6(1): withdrawal by the Commission in individual cases
(ii) Article 6(2): withdrawal by an NCA of a Member State
(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
(i) Effects of technology pools
(a) Pro-competitive effects
(b) Anti-competitive effects
(c) Regulation 316/2014
(ii) Assessment of the formation and operation of technology pools
(a) Open participation
(b) Selection and nature of the pooled technologies
(c) Selection and function of independent experts
(d) Exchange of sensitive information
(iii) A safe harbour
(iv) Assessment of individual restraints in agreements between the pool and its licensees
(B) Copyright pools
(C) Settlements of litigation
(i) Settlement agreements
(a) ‘Pay for delay’ agreements
(b) Cross-licensing
(c) No-challenge clauses
(ii) Trade mark settlements
(D) Concerted refusal to license intellectual property rights
5 Article 102 and Intellectual Property Rights
(A) Compulsory licences
(i) The Renault and Volvo judgments
(ii) The Magill case
(iii) IMS Health
(iv) The Microsoft case
(a) The Commission and the General Court assumed that Microsoft enjoyed intellectual property protection
(b) The General Court’s summary of the applicable law
(c) The General Court’s benign application of the ‘new product’ requirement
(d) Remedy
(B) The Commission’s Guidance on Article 102 EnforcementPriorities
(C) Collecting societies
(D) Miscellaneous cases concerning intellectual property rights
(i) Unlawful acquisition of technology
(ii) Demanding excessive royalties
(iii) Seeking an injunction to enforce standard-essential patents
(iv) FRAND licences for standard-essential patents
(v) Patent assertion entities
(vi) Vexatious behaviour and abuse of process
6 UK Law
(A) Licences of intellectual property rights: the Chapter I prohibition
(B) Settlements of litigation
(C) The Chapter II prohibition
(D) Market investigations
20 Mergers (1): introduction
Preliminary Material
1 Introduction
2 Terminology
(A) The meaning of ‘merger’ and ‘concentration’
(B) The horizontal, vertical and conglomerate effects of mergers
(i) Horizontal effects
(ii) Vertical effects
(iii) Conglomerate effects
3 Merger Activity
4 The Proliferation of Systems of Merger Control
5 Why Do Firms Merge?
(A) Economies of scale and scope
(B) Other efficiencies
(C) National champions
(D) Management efficiency and the market for corporate control
(E) Exiting an industry
(F) Greed, vanity, fear and drugs
(G) Increasing market power
6 What is the Purpose of Merger Control?
(A) Is merger control necessary?
(B) Assessing the competitive effects of mergers
(i) Theories of competitive harm
(a) Unilateral or non-coordinated effects
(b) Coordinated effects
(c) Vertical effects
(d) Conglomerate effects
(ii) Evidence
(iii) The counterfactual
(C) The substantive test: SLC, dominance, SIEC
(D) Guidelines
(E) Remedies
(F) Evaluation of merger decisions
(G) Merger control and the public interest
(i) Loss of efficiency and ‘short-termism’
(ii) Concentration of wealth
(iii) Unemployment and regional policy
(iv) Overseas control
(v) Special sectors
7 Designing a System of Merger Control
21 Mergers (2): EU law
Preliminary Material
1 Introduction
2 Overview of EU Merger Control
(A) Brief description of the EU system of merger control
(B) Institutional arrangements
(C) The Implementing Regulation and the Commission’s Notices and Guidelines
(i) The Implementing Regulation
(ii) Commission Notices and Guidelines
(iii) Best Practice Guidelines
(D) Access to the Commission’s decisions
3 Jurisdiction
(A) Article 3: meaning of a concentration
(i) Article 3(1)(a): mergers
(ii) Article 3(1)(b): acquisition of control
(a) The concept of control
(b) Sole control
(c) Joint control
(iii) Changes in the quality of control
(iv) Joint ventures—the concept of full-functionality
(a) Operational autonomy
(b) Activities beyond one specific function for the parents
(c) Sale/purchase relations between the joint venture and its parents
(d) Operation on a lasting basis
(e) Implications of full-functionality
(v) Exceptions
(B) Article 1: concentrations having a Union dimension
(i) Thresholds
(a) Article 1(2)
(b) Article 1(3)
(c) Possible reform
(ii) Notion of undertaking concerned
(iii) Relevant date for establishing jurisdiction
(iv) Turnover
(v) Geographic allocation of turnover
(vi) Conversion of turnover into Euros
(vii) Provisions for credit and other financial institutions and insurance undertakings
(viii) Illustrations
(C) Article 21: one-stop merger control
(i) The benefits of one-stop merger control
(ii) The benefits of more flexible jurisdictional rules
(D) Article 4(4) and Article 9: referral of concentrations having a Union dimension to the competent authorities of the Member States
(i) Pre-notification referrals: Article 4(4)
(ii) Post-notification referrals: Article 9
(a) Article 9(2)(a)
(b) Article 9(2)(b)
(iii) Statistics
(iv) Article 4(4) and Article 9 in practice
(E) Article 4(5) and Article 22: referral of concentrations not having a Union dimension by Member States to the Commission
(i) Pre-notification referrals: Article 4(5)
(ii) Post-notification referrals: Article 22
(iii) Statistics
(iv) Article 4(5) and Article 22 in practice
(F) Article 21(4): legitimate interest clause
(i) Authorised applications of Article 21(4)
(ii) Prohibited applications of Article 21(4)
(G) Defence
4 Notification, Suspension of Concentrations, Procedural Timetable and Powers of Decision
(A) Notification
(i) Form CO
(ii) Short Form CO
(iii) Reasoned submissions
(B) Suspension of concentrations
(C) Procedural timetable and powers of decision of the Commission
(i) Phase I investigations
(a) Possible decisions at the end of Phase I
(b) Timetable
(ii) Phase II investigations
(a) Possible decisions at the end of Phase II
(b) Timetable
(c) Phase II procedure
(iii) ‘Phase III’
5 Substantive Analysis
(A) Adoption of the ‘significant impediment to effective competition’ test
(i) The dominance/SLC debate
(ii) The non-collusive oligopoly gap
(iii) The solution: ‘SIEC’
(iv) The need for a causal link between the concentration and the SIEC
(v) The ‘counterfactual’
(vi) Article 2(1): the appraisal criteria
(B) Publication of merger guidelines
(C) Market definition
(i) Form CO: ‘affected markets’
(ii) Commission decisions
(iii) Effect of decisions on market definition
(iv) Quantitative tests
(D) Horizontal mergers
(i) Market shares and concentration levels
(a) Market shares
(b) Concentration levels
(ii) Possible anti-competitive effects of horizontal mergers
(a) Non-coordinated effects
(b) Coordinated effects
(c) Mergers with a potential competitor
(d) Mergers creating or strengthening buyer power
(iii) Countervailing buyer power
(iv) Entry
(v) Efficiencies
(vi) The ‘failing firm’ defence
(E) Non-horizontal mergers
(i) Overview
(ii) Market shares and concentration levels
(iii) Vertical mergers
(a) Non-coordinated effects: foreclosure
(b) Other non-coordinated effects
(c) Coordinated effects
(iv) Conglomerate mergers
(a) Non-coordinated effects
(b) Coordinated effects
(v) Recent cases on non-horizontal mergers
(F) Articles 2(4) and 2(5) of the EUMR: full-function joint ventures and ‘spillover effects’
(i) A practical example
(ii) Articles 2(4) and 2(5) in practice
(G) Contractual restrictions directly related and necessary to a merger: ‘ancillary restraints’
(i) Introduction
(ii) General principles
(iii) Principles applicable in cases of the acquisition of an undertaking
(iv) Principles applicable in cases of full-function joint ventures
6 Remedies
(A) The legal basis for commitments
(B) The Commission’s Notice on remedies
(i) General principles
(ii) Different types of remedies
(a) Divestiture of a business to a suitable purchaser
(b) Removal of links with competitors
(c) Other remedies
(d) Review clauses
(iii) Procedural issues
(iv) Implementation of commitments
(v) Review of commitments
(C) Remedies in practice
7 Powers of Investigation and Enforcement
8 Judicial Review
(A) Acts
(B) Standing
(i) The parties to the transaction
(ii) Third parties
(C) The approach to evidence
(D) The expedited procedure
(E) Examples of third party appeals
(i) Appeals against the Commission’s refusal to take jurisdiction
(ii) Appeals against Article 9 references
(iii) Appeals against unconditional clearances
(iv) Appeals against conditional clearances
(v) Appeals seeking access to information
(F) Damages claims against the Commission
9 International Cooperation
(A) Close and constant liaison with Member States
(B) Relations with non-EU countries
(i) Reciprocity
(ii) The international dimension
10 The EUMR in Practice
(A) Statistics
(B) Table of Phase II investigations
(C) Comment
(i) Outright prohibitions
(ii) Prohibition decisions annulled on appeal
(iii) Unconditional clearances
(iv) Clearances subject to commitments
(v) Withdrawal of notifications
22 Mergers (3): UK law
Preliminary Material
1 Introduction
2 Overview of UK Merger Control
(A) Part 3 of the Enterprise Act 2002
(B) Brief description of the system of merger control in the UK
(C) Institutional arrangements
(D) Guidelines, rules of procedure and other relevant publications
3 The CMA’s Duty to Make References: Phase 1 Investigations
(A) Duty to make references: completed mergers
(i) Duty to refer
(a) The IBA Health case
(b) Guidance
(c) The UniChem case
(d) The Celesio case
(e) Gathering information in relation to a possible reference
(ii) Discretion not to refer
(a) Markets of insufficient importance
(b) Customer benefits
(iii) Circumstances in which a reference cannot be made
(B) Duty to make references: anticipated mergers
(C) Relevant merger situations
(i) Enterprises ceasing to be distinct
(a) ‘Enterprises’
(b) ‘Cease to be distinct’
(ii) The turnover test
(iii) The share of supply test
(iv) Time limits and prior notice
(D) CMA procedure in Phase 1
(i) Notifying mergers to the CMA
(a) The CMA’s market intelligence function
(b) Informal advice
(c) Pre-notification discussions
(d) Notification using a merger notice
(e) Own-initiative investigations
(f) Fast-track references
(ii) The assessment process
(iii) Procedural timetable
(iv) Ancillary restraints
(v) Undertakings in lieu of a reference
(a) Legal basis
(b) Guidance on undertakings in lieu
(c) Procedure
(d) Effect of accepting undertakings in lieu
(e) Examples
(vi) Communication and publication of Phase 1 decisions
(vii) Fees
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
(A) Publication of merger guidelines
(B) A substantial lessening of competition
(i) What is an SLC?
(ii) Theories of harm
(iii) The counterfactual
(a) The approach to the counterfactual
(b) The exiting firm scenario
(C) Market definition
(D) Measures of concentration
(E) Horizontal mergers
(i) Unilateral effects
(ii) Coordinated effects
(F) Non-horizontal mergers
(G) Efficiencies
(H) Barriers to entry and expansion
(I) Countervailing buyer power
6 Enforcement
(A) Initial enforcement orders: Phase 1 investigations
(i) Initial orders to prevent pre-emptive action
(ii) Initial orders to unwind pre-emptive action
(iii) The CMA’s approach to making initial orders
(iv) Undertakings in lieu of a Phase 2 reference
(B) Interim restrictions and powers: Phase 2 investigations
(i) Statutory restrictions on dealings
(ii) Interim undertakings and orders to prevent pre-emptive action
(a) Legal basis
(b) Guidance
(c) Interim orders in practice
(iii) Interim undertakings and orders: penalties
(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
(A) Investigation powers and penalties
(B) Review of decisions under Part 3 of the Enterprise Act
8 The Merger Provisions in Practice
(A) Basic statistical analysis
(B) Abandoned mergers
(C) Completed mergers
(i) Full unscrambling
(ii) Substantial unscrambling
(iii) Partial unscrambling
(D) The number of findings of an SLC
(E) The number of outright prohibitions
(F) Relationship with Article 102
(G) Healthcare
(H) Evaluation of remedial action
9 ‘Public Interest Cases’, ‘Other Special Cases’ and Mergers in the Water Industry
(A) Public interest cases
(i) Public interest considerations
(ii) Procedure in public interest cases: Phase 1
(iii) Procedure in public interest cases: Phase 2
(iv) The public interest provisions in practice
(B) ‘Special public interest cases’
(i) Procedure in special public interest cases
(ii) The special public interest provisions in practice
(C) European mergers
(D) Mergers in the water industry
23 Particular sectors
Preliminary Material
1 Introduction
2 Nuclear Energy
3 Military Equipment
4 Agriculture
(A) Council Regulations 1184/2006 and 1308/2013
(B) Annex I products
(C) The first derogation: national market organisations
(D) The second derogation: common market organisations
5 Coal and Steel
6 Transport
(A) Inland transport
(i) Legislative regime
(ii) Practical application of the competition rules to inland transport
(B) Maritime transport
(i) Legislative regime
(a) Procedural rules
(b) Substantive rules
(c) Block exemption for shipping consortia
(ii) Practical application of the competition rules to maritime transport
(C) Air transport
(i) Legislative regime
(ii) Practical application of the competition rules to air transport
7 Regulated Industries
(A) Demonopolisation, liberalisation and privatisation
(B) EU law and the liberalisation of markets
(C) Regulatory systems in the UK for utilities
(D) Price caps
8 Electronic Communications
(A) EU law
(i) Legislation
(a) Common regulatory framework
(b) Article 106(3) TFEU
(c) Net neutrality
(ii) Application of EU competition law
(a) Article 101
(b) Article 102
(c) EUMR
(B) UK law
(i) Competition Act 1998
(ii) Enterprise Act 2002
9 Post
(A) EU law
(i) Legislation
(ii) Application of EU competition law
(a) The Corbeau case and the universal service obligation
(b) The Commission’s Notice on competition in the postal sector
(c) Article 101
(d) Article 102
(e) EUMR
(B) UK law
10 Energy
(A) EU law
(i) Legislation
(ii) Application of EU competition law
(a) Article 101
(b) Article 102
(c) EUMR
(B) UK law
(i) Competition Act 1998
(ii) Enterprise Act 2002
11 Water
(A) Competition Act 1998
(B) Enterprise Act 2002
Further Material
Bibliography
Index
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Table of guidelines, guidance and other publications
Richard Whish BA BCL (Oxon), QC (Hon), David Bailey LLB (King’s College London), LLM (Harv)
From:
Competition Law (9th Edition)
Richard Whish, David Bailey
Previous Edition (8 ed.)
Content type:
Book content
Product:
Oxford Competition Law [OCL]
Published in print:
26 July 2018
ISBN:
9780198779063
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