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View translated passages only
Oxford Law Citator
Contents
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Preliminary Material
Dedication
Preface
Contents
List of Figures
List of Abbreviations
General
Publications
Table of Cases
European Union Cases
Court of Justice
Numerical
General Court/Court of First Instance
Alphabetical
Numerical
European Commission
European Court of Human Rights Cases
National Cases
France
United Kingdom
General
Office of Fair Trading
Competition Commission
United States
Table of Treaties and Conventions
Table of European Union Legislation
Regulations
Directives
Commission Guidelines, Notices, and Recommendations
Table of National Legislation
Canada
France
Italy
Spain
United Kingdom
United States
Main Text
1 Introduction
A The problem
B The method
C The structure of the inquiry
Part I Normative Foundations
2 Normative Theory of Competition Law
A Introduction
B Non-welfare objectives
(1) The competitive process and a competitive market structure
(2) Economic freedom
(3) Fairness
(4) Protection of competitors and small and medium-sized enterprises
(5) Market integration
(6) Market liberalization
(7) Consumer choice
C Social welfare
(1) The search for the economic purpose of the law
(2) Social welfare, consumer welfare, and economic efficiency
(3) Theoretical and normative superiority of the long-term social welfare objective
(4) Consumer welfare
(a) Definition of the long-term consumer welfare objective
(b) Redistribution of wealth
(c) Imperfections in corporate governance
(d) Enforcement, efficiency, and institutional capability
(e) The misuse of the consumer welfare objective
(5) A different perspective: consumer harm as a test to achieve a social welfare objective
(a) The problem
(b) Information asymmetry
(c) Self-selection
(d) Lobbying
(e) Limited (not general) validity of consumer harm as a test
D Conclusion
3 The Design of the Optimal Abuse Tests
A Introduction
B The search for a single test
C Intent
(1) Origins of the test
(2) Defining intent
(3) Naked abuse as a test of intent
(4) The test of intent beyond naked abuse and its limitations
D The no economic sense test
E The as efficient competitor test
(1) Consistency of the as efficient competitor test with fundamental principles
(2) Under-inclusiveness of the as efficient competitor test
(3) Over-inclusiveness of the as efficient competitor test
(4) The problem of multi-product firms
(5) Extension of the as efficient competitor test to abusive discrimination
(a) The problem
(b) General welfare effects of discrimination
(c) Competitive implications of discrimination on intermediate markets
(d) The market-distorting discrimination test
F The consumer harm test
(1) General formulations of the consumer harm test
(2) Advantages of the consumer harm test
(3) Problems of over- and under-enforcement associated with the consumer harm test
(4) Administrability of the consumer harm test
(5) Exploitative abuses and consumer harm
G Conclusion
Part II Legal Foundations
4 The Objective of Article 102
A Introduction
B Interpretation of Article 102
(1) The general prohibition of an abuse of a dominant position
(2) The illustrative list
(3) The internal market
(a) The link between the competition rules and the internal market
(b) The internal market and economic freedom
(c) The social welfare objective of the internal market
(d) The competition rules and the objectives of the Union
(4) Historical background and travaux préparatoires
(a) A methodological gloss
(b) The Treaty establishing the European Coal and Steel Community
(c) From the ECSC Treaty to the Spaak Report
(d) The drafting of the text of Article 102
(e) Long-term social welfare in the travaux préparatoires
C The problem of the objective of the EU competition rules in the case law and secondary legislation
(1) Integrated analysis of Article 102, Article 101, and merger control
(2) The EU competition rules and the objectives of the Treaties
(a) Article 102
(b) Article 101
(c) Merger control
(3) Rejection of consumer welfare as an objective of EU competition law
(4) Fairness
(a) Fairness and equally efficient competitors
(b) Fairness and less efficient competitors
(5) Economic freedom
D Conclusion
5 The General Framework of the Abuse Tests in EU Law
A Introduction
B The proportionality test in context
(1) Proportionality as an analytical structure
(2) Proportionality as a general principle of EU law
(3) The proportionality framework under Article 101
C Proportionality under Article 102
(1) The proportionality framework in the case law
(2) The proportionality framework in the Guidance on Article 102
D The limited usefulness of the definition of abuse in Hoffmann-La Roche
E Continental Can and the concept of effective competition
F The special responsibility of the dominant undertaking
G Causal link between dominance, conduct, and effect
(1) Causal link between dominance and competitive harm
(2) Multi-market abuses
(a) Input/output and complementary products
(b) Neighbouring markets
(c) The test for multi-market abuses
H Conclusion
Part III Tests of Abuse
6 The Tests of Intent
A Introduction
B The naked abuse test
(1) Naked abuse as a general test
(2) Naked abuse and free trade
(a) Free trade as a key driver of long-term social welfare
(b) Above-cost rebates
(c) Refusal to supply
(d) Raising rivals' costs
(e) Discrimination
(f) Naked exploitation
C Intent and the risk of systematic false convictions
(1) Predation
(a) The problem
(b) Inadequacy of the recoupment test
(c) The test of intent in predation
(d) Recoupment as predatory incentive
(e) The no economic sense test as a test of intent
(f) The predation test in the Guidance on Article 102
(2) Abuse of contractual rights
D Intent and the risk of systematic false acquittals
(1) Tying
(a) The problem
(b) The enforcement risks associated with tying
(c) Intent and incentive for anti-competitive tying
E Evidence of intent as circumstantial evidence
F Conclusion
7 The As Efficient Competitor Test
A Introduction
B Predatory conduct
(1) Predation and exclusion of as efficient competitors
(2) The problem of the permissible cost benchmarks
C Margin squeeze
D Conditional above-cost rebates
(1) Protection of less efficient undertakings incompatible with Article 102
(2) Static application of the as efficient competitor test
(3) Dynamic application of the as efficient competitor test
E Unconditional above-cost rebates
F Mixed bundling
G Exclusivity
H Discrimination
(1) Article 102(c) as the exclusive legal basis
(2) Criticism of the application of Article 102(c) to exclusionary conduct
(3) Market-distorting discrimination and competitive disadvantage
I Conclusion
8 The Consumer Harm Test
A Introduction
B The consumer harm test in vertical foreclosure
(1) The concept of vertical foreclosure
(2) Refusal to supply
(a) The problem of balancing investment incentives and competitive harm
(b) Indispensability
(c) Intensity of the exclusionary effect
(d) Raising rivals' costs
(e) Clarifying the consumer harm test in refusal to supply
(f) Refusal to supply an existing customer
(3) Margin squeeze as a vertical foreclosure strategy
C Exploitative abuses
(1) The need for limiting principles
(2) Enhanced dominance test
(3) Enhanced consumer harm test
(4) Post-exclusionary exploitation test
D Consumer harm as the default test for exclusionary abuses
E Conclusion
9 Defences
A Introduction
B Burden of proof and evidential burden
C Thresholds of anti-competitive effects
D Proportionality defences
(1) Structure of the test
(2) The meeting competition defence
E Objective justification defences
(1) Structure of the test
(2) Efficiency defences
(a) Allocative efficiency
(b) Productive efficiency
(c) Dynamic efficiency
(3) Social welfare defences
F Conclusion
Part IV Analytic of the Concept of Dominance
10 Single Dominance
A Introduction
B Dominance as the ability to harm competition
C Dominance as market power
D Barriers to entry
(1) Dynamic test of barriers to entry
(2) Sunk costs
(3) Economies of scale
(4) Economies of scope and product range
(5) Network effects
(6) Switching costs
(7) Vertical integration and exclusive or preferential access to inputs or customers
(8) Financial strength
(9) Spare capacity
E Countervailing buyer power
F Conclusion
11 Collective Dominance
A Introduction
B The emergence of the concept of collective dominance
C Non-oligopolistic collective dominance
(1) Horizontal non-oligopolistic collective dominance
(a) The two-pronged structure of the test
(b) Collective entity test
(c) Dominance test
(2) Vertical non-oligopolistic collective dominance
D Oligopolistic collective dominance
(1) Structure of the test
(2) Integrated analysis of structural and behavioural factors
(a) The Impala approach
(b) Ability to coordinate
(i) Concentration and stability of market shares
(ii) Market transparency
(iii) Price parallelism
(iv) Reaction of customers and analysis of demand
(v) Reaction of actual and potential competitors
(vi) Innovation
(c) Incentive to coordinate
(d) No incentive to deviate
E Abuse of collective dominance
F Conclusion
Part V The Analytical Framework of Article 102
12 General Conclusion
A Introduction
B Towards a coherent analytical framework for the application of Article 102
C Objectives, principles, and tests clarified
(1) Objectives and general principles
1 Long-term social welfare objective.
2 Market integration.
3 Fairness and equality of opportunities.
4 No protection of less efficient undertakings under Article 102.
5 Economic freedom.
6 Effective competition.
7 Proportionality framework.
8 Causal link between dominance and abuse and multi-market abuses.
(2) Assessment of conduct
9 Prima facie abuse tests.
10 Naked abuse test.
11 Naked abuse test and market integration.
12 Predation.
13 Conditional rebates.
14 Exclusivity.
15 Unconditional rebates.
16 Tying.
17 Mixed bundling.
18 Market-distorting discrimination.
19 Vertical foreclosure.
20 Exploitative abuses.
21 Default test.
22 Burden of proof.
23 Anti-competitive effects tests.
24 Taxonomy of defences.
25 Mere defences of proportionality.
26 The proportionality defence of meeting competition.
27 Objective justification test.
28 Taxonomy of objective justification.
29 Efficiency defences.
30 Social welfare defences.
(3) Assessment of dominance
31 Single dominance.
32 Non-oligopolistic collective dominance.
33 Oligopolistic collective dominance.
34 Abuse of collective dominance.
D Addressing the main shortcomings of the current case law and enforcement practice
Further Material
Bibliography
Index
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Preface
From:
The Foundations of European Union Competition Law: The Objective and Principles of Article 102
Renato Nazzini
Content type:
Book content
Product:
Oxford Competition Law [OCL]
Series:
Oxford Studies in European Law
Published in print:
01 December 2011
ISBN:
9780199226153
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