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17. Abuse of dominance (1): non-pricing practices  

This chapter considers abusive non-pricing practices under Article 102 TFEU and the Chapter II prohibition in the Competition Act 1998. It deals in turn with exclusive dealing agreements; tying; refusals to supply; abusive non-pricing practices that are harmful to the single market; and miscellaneous other non-pricing practices which might infringe Article 102 or the Chapter II prohibition. Reference is made where appropriate to the Commission’s Guidance on the Commission’s Enforcement Priorities in Applying Article [102 TFEU] to Abusive Exclusionary Conduct by Dominant Undertakings.

Chapter

Cover Competition Law

17. Abuse of dominance (1): non-pricing practices  

This chapter considers abusive non-pricing practices under Article 102 TFEU and the Chapter II prohibition in the Competition Act 1998. It deals in turn with exclusive dealing agreements; tying; refusals to supply; abusive non-pricing practices that are harmful to the single market; and miscellaneous other non-pricing practices which might infringe Article 102 or the Chapter II prohibition. Reference is made to the case-law of the Court of Justice and the Commission’s Guidance on the Commission’s Enforcement Priorities in Applying Article [102 TFEU] to Abusive Exclusionary Conduct by Dominant Undertakings

Chapter

Cover Competition Law

18. Abuse of dominance (2): pricing practices  

This chapter considers abusive pricing practices under Article 102 TFEU and the Chapter II prohibition in the Competition Act 1998. It discusses cost concepts used in determining whether a price is abusive and deals with excessive pricing; conditional rebates; bundling; predatory pricing; margin squeeze; price discrimination; and practices harmful to the single market. Price discrimination may be both exploitative and exclusionary and an excessively high price may be a way of preventing parallel imports or excluding a competitor from the market; but the division may provide helpful insights into the way in which the law is applied in practice. In each section the application of Article 102 by the European Commission and the EU Courts is considered, followed by cases in the UK. Where appropriate, reference is made to the Commission’s Guidance on the Commission’s Enforcement Priorities in Applying Article [102 TFEU] to Abusive Exclusionary Conduct by Dominant Undertakings.

Chapter

Cover Competition Law

18. Abuse of dominance (2): pricing practices  

This chapter considers abusive pricing practices under Article 102 TFEU and the Chapter II prohibition in the Competition Act 1998. It first discusses various cost concepts used in determining whether a price is abusive. It then deals in turn with excessive pricing; conditional rebates; bundling; predatory pricing; margin squeeze; price discrimination; and practices that are harmful to the single market. This taxonomy is over-schematic, in that the categories overlap with one another: for example price discrimination may be both exploitative and exclusionary, and an excessively high price may in reality be a way of preventing parallel imports or of excluding a competitor from the market; nevertheless this division may provide helpful insights into the way in which the law is applied in practice. In each section the application of Article 102 by the European Commission and by the EU Courts will be considered first, followed by cases in the UK. Reference will be made where appropriate to the Commission’s Guidance on the Commission’s Enforcement Priorities in Applying Article [102 TFEU] to Abusive Exclusionary Conduct by Dominant Undertakings.

Chapter

Cover Competition Law of the EU and UK

9. Agreements in the EU: the ELEMENTS of Article 101 TFEU  

This chapter considers the general principles of the application of Article 101 TFEU. Article 101 TFEU applies to joint, coordinated conduct understood in a broad sense to catch agreements, decisions by associations of undertakings, and concerted practices. The most important question is that of whether there is in the conduct a prevention, restriction, or distortion of competition within the meaning of Article 101(1) TFEU. Some forms of conduct, such as horizontal price fixing, are generally deemed to be anticompetitive by object; others, such as vertical distribution agreements, must be analysed in order to determine the competitive effects of the conduct. For the prohibition to apply, there must be an effect on trade between Member States. Article 101 TFEU has direct effect, and conduct prohibited is illegal without any decision to that effect being necessary.

Chapter

Cover Competition Law of the EU and UK

16. An analysis of the principal abusive practices  

This chapter focuses on the most important pricing and non-pricing practices, which together constitute the larger part of the anti-competitive and exploitative abuses of dominant firms. The types of conduct considered abusive of market power are similar under most competition regimes, and include both pricing and non-pricing practices. The ‘form-based’ analysis of abusive practices is progressively shifting to an ‘effects-based approach’. In the EU and the UK, both exclusionary and exploitative abuses may fall foul of the relevant competition law provisions. Exclusionary practices are usually considered abusive when they are likely to lead to ‘anticompetitive foreclosure’. The EU and UK law and practice in relation to all these potential abuses is and will remain aligned until the UK has formally left the EU.

Chapter

Cover Jones & Sufrin's EU Competition Law

5. Article 101 TFEU: Substantive Appraisal  

Alison Jones, Brenda Sufrin, and Niamh Dunne

This chapter examines the relationship between Article 101(1) and Article 101(3). It looks at the central question of which agreements, decisions, and concerted practices have as their object or effect the prevention, restriction, or distortion of competition for the purposes of Article 101(1) and at the issue of which agreements are held to infringe Article 101(1) but meet the criteria for exemption from the prohibition set out in Article 101(3). The chapter looks at the way in which the interpretation of ‘object or effect the prevention, restriction or distortion of competition’ has changed since the early days of EEC competition law and at the problems of identifying which agreements are restrictive by object and which restrictive by effect. It examines the recent and controversial case law on the concept of a restriction of competition by object, considers how restrictive effects are identified, and explores the concept of appreciability and the De Minimis Notice. The chapter also considers the matter of which restrictive agreements may nevertheless escape the prohibition in Article 101(1) because they individually meet either the four criteria set out in Article 101(3) or the conditions of a block exemption. It discusses whether the Article 101(3) criteria can encompass socio-political or public policy matters, including whether, and if so when, agreements between competitors designed to achieve sustainability objectives. may satisfy the conditions of Article 101(3).

Chapter

Cover Jones & Sufrin's EU Competition Law

5. Article 101 TFEU: Substantive Appraisal  

This chapter examines the relationship between Article 101(1) and Article 101(3). It looks at the central question of which agreements, decisions and concerted practices have as their object or effect the prevention, restriction or distortion of competition for the purposes of Article 101(1) and at the issue of which agreements are held to infringe Article 101(1) but meet the critera for exemption from the prohibition set out in Article 101(3). The chapter looks at the way in which the interpretation of ‘object or effect the prevention, restriction or distortion of competition’ has changed since the early days of EEC competition law and at the problems of identifying which agreements are restrictive by object and which restrictive by effect. It examines the recent and controversial case law on this matter and the difficulties which remain including the doctrine of ancillary restraints. It then focuses on the analysis of the effect of agreements which are not restrictive by object, including the concept of appreciability and the de minimis notice. The chapter then considers the matter of which restrictive agreements may neverthess escape the prohibition in Article 101(1) because they meet the criteria in Article 101(3) in that they improve the production or distribution of goods or the promotion of technical or economic progress, how this criterion is distinguished from the agreement not having restrictive effects that bring it within Article 101(1) in the first place, and whether the Article 101(3) criteria can encompass socio-political or public policy matters. The chapter considers the application of the Article 101(3) criteria, the shifting of the burden of proof between Article 101(1) and 101(3), and the existence and importance of block exemptions.

Chapter

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4. Article 101 TFEU: The Elements  

Alison Jones, Brenda Sufrin, and Niamh Dunne

This chapter discusses the text and scheme of Article 101 which prohibits agreements, decisions, and concerted practices which restrict competition and affect trade between Member States. It explains the terms employed in Article 101(1) and how they are interpreted and applied. In particular, it discusses: the meaning of ‘undertaking’ and ‘association of undertakings’, including the concepts of ‘economic activities’ and of a ‘single economic entity’; the meaning of ‘agreement’ including the coverage of both horizontal and vertical agreements; the meaning of ‘concerted practice’; the meaning of ‘decisions by associations of undertakings’; the application of Article 101(1) to complex arrangements and single continuous infringements; and the meaning of an appreciable effect on trade between Member States.

Chapter

Cover Jones & Sufrin's EU Competition Law

4. Article 101 TFEU: The Elements  

This chapter discusses the text and scheme of Article 101 which prohibits agreements, decisions and concerted practices which restrict competition and may affect trade between Member States. It explains the terms employed in Article 101(1) and how they are interpreted and applied. This entails a discussion of the meaning of ‘undertaking’ and ‘association of undertakings’, including the concepts of ‘economic activities’ and of a ‘single economic entity’; the meaning of ‘agreement’ including the coverage of both horizontal and vertical agreements; the meaning of ‘concerted practice’; the meaning of ‘decisions by associations of undertakings’; the application of Article 101(1) to complex arrangements and single continuous infringements; and the meaning of an appreciable effect on trade between Member States.

Chapter

Cover Competition Law

3. Article 101(1)  

This chapter discusses Article 101(1) of the Treaty on the Functioning of the European Union (TFEU), which prohibits agreements, decisions by associations of undertakings and concerted practices that restrict competition. It begins by explaining the terms ‘undertakings’ and ‘associations of undertakings’. It then considers what is meant by the terms ‘agreements’, ‘decisions’ and ‘concerted practices’, as well as what is meant by the phrase ‘prevention, restriction and distortion of competition’ that serves as the purpose of the provision. The chapter then deals with the de minimis doctrine, before explaining the requirement of an effect on trade between Member States. The chapter concludes with a checklist of agreements that, for a variety of reasons, normally fall outside Article 101(1).

Chapter

Cover Competition Law

3. Article 101(1)  

This chapter discusses Article 101(1) of the Treaty of Functioning of the European Union (TFEU), which prohibits agreements, decisions by associations of undertakings, and concerted practices that restrict competition. It begins by explaining the meaning of ‘undertakings’ and ‘associations of undertakings’. It then considers what is meant by the terms ‘agreements’, ‘decisions’, and ‘concerted practices’, as well as what is meant by the phrase ‘have as their object or effect the prevention, restriction, and distortion of competition’. The chapter then deals with the de minimis doctrine, before explaining the requirement of an effect on trade between Member States. The chapter concludes with a checklist of agreements that, for a variety of reasons, normally fall outside Article 101(1).

Chapter

Cover Competition Law

4. Article 101(3)  

This chapter examines Article 101(3) of the Treaty on the Functioning of the European Union (TFEU). Article 101(3) provides a ‘legal exception’ to the prohibition in Article 101(1) by providing that it may be declared inapplicable in respect of agreements, decisions or concerted practices, or of categories of agreements, decisions or concerted practices, that satisfy four conditions. After discussing the burden and standard of proof under Article 101(3) and the application of that provision to agreements, including restrictions of competition by object, this chapter discusses the four conditions in Article 101(3). It then considers the implications of Regulation 1/2003 for undertakings and their professional advisers, and in particular their need to ‘self-assess’ the application of Article 101(3) to agreements. The final section of this chapter describes the system of so-called ‘block exemptions’.

Chapter

Cover Competition Law

4. Article 101(3)  

This chapter examines Article 101(3) of the Treaty of Functioning of the European Union (TFEU). Article 101(3) provides a ‘legal exception’ to the prohibition in Article 101(1) by providing that it may be declared inapplicable in respect of agreements, decisions or concerted practices, or of categories of agreements, decisions or concerted practices, that satisfy four conditions. After making some preliminary comments on the application of Article 101(3), this chapter discusses the four conditions in Article 101(3). It then considers the implications of Regulation 1/2003 for undertakings and their professional advisers, and in particular their need to ‘self-assess’ the application of Article 101(3) to agreements. The final section of this chapter describes the system of so-called ‘block exemptions’.

Chapter

Cover Competition Law

5. Article 102  

This chapter discusses the main features of Article 102 of the Treaty on the Functioning of the European Union (TFEU), which is concerned with the abusive conduct of dominant firms. It begins by introducing the European Commission’s Guidance on the Commission’s enforcement priorities in applying Article [102 TFEU] to abusive exclusionary conduct by dominant undertakings. It then discusses the concept of undertaking, the requirement of an effect on trade between Member States, the concept of a dominant position and the requirement that any dominant position must be held in a substantial part of the internal market. The chapter also considers the meaning of abuse of a dominant position, which is a complex and controversial issue. A discussion of the defences to allegations of abuse is followed by a brief look at the consequences of infringing Article 102.

Chapter

Cover Competition Law

5. Article 102  

This chapter discusses the main features of Article 102 of the Treaty of Functioning of the European Union (TFEU), which is concerned with the abusive conduct of dominant firms. It begins by discussing the meaning of ‘undertaking’ and ‘effect on trade between Member States’ in the context of Article 102. It then considers what is meant by a dominant position and looks at the requirement that any dominant position must be held in a substantial part of the internal market. Thereafter it discusses some general considerations relevant to the concept of abuse of dominance, followed by an explanation of what is meant by ‘exploitative’, ‘exclusionary’ and ‘single market’ abuses. It then discusses possible defences to allegations of abuse, and concludes by considering the consequences of infringing Article 102.

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7. Article 102 TFEU: Conduct Which Can be an Abuse  

Alison Jones, Brenda Sufrin, and Niamh Dunne

This chapter discusses the difficult concept of what constitutes an ‘abuse’ of a dominant position for the purposes of Article 102. It considers the case law of the EU Courts, the decisional practice of the Commission, and the Commission’s Guidance Paper on enforcement priorities, and the problem of distinguishing competition on the merits from illegitimate conduct. The chapter looks at the different classifications of abuse, particularly exclusionary and exploitative abuses; the distinction between form- and effects-based approaches to types of abuse; the leveraging of market power between distinct markets as a theory of harm; the objective justification defence; and general issues in respect of abuses concerning prices, including the ‘as efficient competitor’ test. The chapter then examines the application of Article 102 to various forms of conduct, including: price discrimination; predatory pricing; selective low pricing; margin squeeze; exclusive dealing; tying and bundling; refusal to supply; self-preferencing; malicious pursuit of legal proceedings; ‘regulatory gaming’; discrimination abuses; unfairly high and low pricing; and hindering inter-Member State trade.

Chapter

Cover Jones & Sufrin's EU Competition Law

7. Article 102 TFEU: Conduct Which Can Be an Abuse  

This chapter discusses the difficult concept of what constitutes an ‘abuse’ of a dominant position for the purposes of Article 102 and whether conduct should be condemned on account of the form it takes or only for its effects. It considers the case law of the EU Courts, the decisional practice of the Commission, and the Commission’s Guidance Paper on enforcement priorities, and the problem of distinguishing competition on the merits from illegimate conduct. The chapter looks at the different classifications of abuse, particularly exclusionary and exploitative abuses; the distinction between form- and effects-based approaches to types of abuse; the leveraging of market power between distinct markets as a theory of harm; the objective justification defence; and general issues in respect of abuses concerning prices, including the ‘as efficient competitor’ test. The chapter then examines the application of Article 102 to various forms of conduct, including: price discrimination; predatory pricing; selective low pricing; margin squeeze; exclusive dealing;; tying and bundling; refusal to supply; self-preferencing; malicious pursuit of legal proceedings; ‘regulatory gaming’; discrimination abuses; unfairly high and low pricing; hindering inter-Member State trade; and more novel claimed abuses within the digital economy.

Chapter

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6. Article 102 TFEU: Introduction and Dominant Position  

Alison Jones, Brenda Sufrin, and Niamh Dunne

Article 102 TFEU deals with the unilateral conduct of undertakings with substantial market power. It thus prohibits one or more undertakings which hold a dominant position in the internal market, or a substantial part of it, abusing that position insofar as it may affect inter-Member State trade. This chapter discusses the role of Article 102 and the controversy attending its application, and introduces the elements which must be established before the prohibition applies. The Commission’s review of Article 102, the publication of its Guidance Paper on enforcement priorities and subsequent amendments to this document, and the relationship between Article 102 and Article 101, are considered. The chapter also explores in detail one of the principal limbs of the Article 102 prohibition, namely the concept of an undertaking holding a ‘dominant position’ in a relevant market. The definition of a dominant position in the case law of the Court is discussed, alongside its relation to the concept of substantial market power. The chapter then considers how dominance is established, addressing, inter alia, the definition of the relevant market for the purposes of Article 102; the role of market share in establishing dominance; and barriers to entry and other factors indicating dominance.

Chapter

Cover Jones & Sufrin's EU Competition Law

6. Article 102 TFEU: Introduction and Dominant Position  

Article 102 TFEU deals with the unilateral conduct of undertakings with substantial market power. It thus prohibits one or more undertakings which hold a dominant position in the internal market or a substantial part of it abusing that position insofar as it may affect inter-Member State trade. This chapter discusses the role of Article 102 and the controversy attending its application, and introduces the elements which must be established before the prohibition applies. The Commission’s review of Article 102 and the publication of its Guidance Paper on enforcement priorities, and the relationship between Article 102 and Article 101, are also considered. The chapter then explores in detail one of the principal limbs of the Article 102 prohibition, namely the concept of an undertaking holding a ‘dominant position’ in a relevant market. The definition of a dominant position in the case law of the Court is discussed, alongside its relation to the concept of substantial market power, including the Commission’s treatment in the Guidance Paper. The chapter then considers how dominance is established, addressing, inter aliai, the definition of the relevant market for the purposes of Article 102; the role of market share in establishing dominance; barriers to entry and other factors indicating dominance; and dominant positions in the digital economy. Article 102