This chapter discusses the relationship between competition law and intellectual property rights. Competition law may limit the ability to exercise intellectual property rights. Article 101 TFEU and Chapter I Prohibition may apply to agreements to license intellectual property, as well as pay-for-delay settlements between a patent holder and potential competitors. Article 102 TFEU and Chapter II Prohibition may apply to the use of intellectual property rights by a dominant undertaking, particularly when the protected asset is essential to third parties. The existence of intellectual property rights does not automatically confer a dominant position — the product or service may still face competition.
Chapter
This chapter discusses the Competition Act 1998, which serves as a basis for UK competition law. Following an overview of the Competition Act, it considers decisional practice and case law under the so-called Chapter I and Chapter II prohibitions in the Competition Act, which are modelled after Articles 101 and 102 TFEU. It discusses the relationship between EU and domestic competition law, including the important ‘governing principles’ clause in section 60 of the Competition Act, which is intended to achieve consistency with EU law. The chapter contains a table of all the decisions under the Competition Act to have been published on the website of the Competition and Markets Authority (‘the CMA’) since the eighth edition of the book up until 8 December 2017. The chapter concludes with a discussion of the application of the Competition Act in practice and the possible implications of Brexit for UK competition law.
Chapter
This chapter deals with Chapter I Prohibition, which is the UK domestic equivalent of Article 101 TFEU. It is to be applied and interpreted in a way that is consistent with the application of Article 101 TFEU, unless there is a ‘relevant difference’. There is no requirement for an effect on trade between Member States, but on trade within the UK. The prohibition has been applied to localized agreements. If Article 101 TFEU is applicable to any practice being examined under Chapter I Prohibition, it must be applied. Chapter I Prohibition may be applied in conjunction with EU law, but the result must not be inconsistent. A breach of Chapter I Prohibition may incur penalties, damages, and a requirement of conduct modification, and also renders void any offending agreement.
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This chapter describes the system of public enforcement under the Competition Act 1998. Reinforced by the Enterprise Act 2002 and Enterprise Regulatory Reform Act 2013, the Competition Act provides a set of procedural rules of investigation for the enforcement of the Chapter I and II prohibitions. After a section on complaints, it considers the extent to which it may be possible to receive guidance from the Competition and Markets Authority (‘the CMA’) on the application of the Act. It then deals in turn with enforcement of the Competition Act 1998, the criminal cartel offence and company director disqualification. This is followed by an overview of the concurrency provisions, stating that the CMA works hand-in-hand with the sectoral regulators. The final two sections discuss the appeal mechanism under the Competition Act and the possibility of Article 267 references to the Court of Justice.
Book
Richard Whish and David Bailey
Competition Law explains competition law and policy in the EU and UK. The intention is to provide the reader with an understanding of competition law and policy, to introduce the reader to key economic concepts, legal principles and tools in competition law, and to provide insights into the numerous different issues that arise when applying competition law to market behaviour. Describing the economic rationale for the law, the chapters consider the application of EU and UK competition law to various business practices, including cartels, cooperation agreements, distribution agreements, licences of intellectual property rights, joint ventures, and mergers. The text has been updated to include the changes to UK law as a consequence of Brexit. It discusses for the first time the rise of powerful digital platforms and the quest for a suitable competition law and regulatory response to this phenomenon. It also considers the implications of the European Green Deal and the sustainability agenda for EU competition law and practice. The text incorporates extensive new legislation, case-law, decisional practice, guidelines and periodical literature at EU and UK level.
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This chapter explores the international dimension of competition law from two perspectives. It begins by describing the growth of international institutions involved in the development of competition law and policy, with particular reference to the International Competition Network (the ‘ICN’), the Organisation for Economic Cooperation and Development (the ‘OECD’) and the United Nations Conference on Trade and Development (‘UNCTAD’). It then looks at a more technical issue, which is the extent to which a sovereign state (or the European Union) can apply its competition law extraterritorially to conduct beyond its borders that has a harmful effect within it: this will briefly be considered from a theoretical perspective, after which the positions in the US, EU and UK will be examined in turn. The chapter concludes by briefly examining the extent to which a state may wish to block the application of a foreign competition law to its businesses.
Chapter
This chapter describes the substantive provisions of the Competition Act 1998 in the UK. The focus of attention in this chapter is the ‘Chapter I prohibition’, which prohibits anti-competitive agreements, and the ‘Chapter II prohibition’, which prohibits the abuse of a dominant position. The Chapter I and II prohibitions are closely modelled upon Articles 101 and 102 TFEU, although they are by no means identical in every respect. Following an overview of the Competition Act, and the changes introduced as a result of Brexit, it considers in turn the decisional practice and case-law under the Chapter I and Chapter II prohibitions. It then discusses the duty in section 60A of the Competition Act that sets out the principles to be applied in determining questions that arise in relation to competition within the UK with effect from 1 January 2021. The chapter also contains a table of all the decisions under the Competition Act to have been published on the website of the Competition and Markets Authority (CMA) since the ninth edition of the book in December 2017.
Chapter
This chapter examines the application of Article 101 TFEU and the Chapter I prohibition in the UK Competition Act 1998 to distribution agreements. The chapter begins with a discussion of distribution chains in the modern economy, looking at the various ways in which producers market their goods or services to consumers; these have been enormously enhanced by the emergence of the digital economy. This is followed by sections on how the law applies to producers carrying on their own distribution function (‘vertical integration’), commercial agency and vertical sub-contracting relationships. It discusses the competition policy considerations raised by distribution agreements, and explains the application of Article 101 to various different types of distribution agreements. This is followed by a section on the provisions of Regulation 330/2010, the block exemption for distribution agreements, and the individual application of Article 101(3) to distribution agreements. The chapter then contains sections on Regulation 461/2010 on motor vehicle distribution. Finally, it deals with the application of the Chapter I prohibition in the UK Competition Act 1998 to distribution agreements.
Chapter
This chapter describes the system of public enforcement under the Competition Act 1998. This chapter begins with a consideration of the way in which inquiries and investigations are carried out under the Competition Act. It briefly considers the position of complainants to the CMA, followed by a discussion of the extent to which it may be possible to receive guidance from the CMA on the application of the Act. The chapter then describes the powers of the CMA to enforce the Competition Act, the criminal law cartel offence and the provisions on company director disqualification. It concludes with a discussion of concurrency, appeals under the Competition Act and the Government’s review of the operation of the Competition Act between 2014 and 2019.
