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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.

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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).

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Cover Competition Law of the EU and UK

10. Block exemption regulations under Article 101 TFEU  

This chapter focuses on block exemption regulations, which have become crucial in the application of the exception contained in Article 101(3) TFEU to agreements whose pro-competitive effects may outweigh any potential threats to competition. The current block exemptions represent an attempt to reconcile economic considerations and the needs of business. They are therefore less prescriptive than earlier versions, and tend to set a benchmark share of the relevant market within which they are applicable. The chapter fleshes out the details of the principal block exemptions presently in force, and provides a step-by-step guide to their application in the shape of a general flow chart. It covers legal basis and withdrawal, block exemptions for vertical agreements, and horizontal block exemptions.

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Cover Concentrate Questions and Answers EU Law

8. Competition and Merger Law  

The Concentrate Questions and Answers series offer the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary, and illustrative diagrams and flowcharts. This chapter presents sample exam questions along with examiner’s tips, answer plans, and suggested answers about EU competition. The questions on competition law range from a general overview question, to questions which surveys the basic concepts and requirements of Arts 101 and 102 TFEU. The 2007 Lisbon Treaty made little substantive change to the competition law provisions, which can be found in Arts 101–106 of the TFEU. More significant is the Competition Regulation 1/2003 and the Merger Regulation, 139/2004.

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17. Competition law  

Alison Jones and Christopher Townley

This chapter examines the two core competition rules that govern anticompetitive agreements (Article 101 TFEU) and abuse of a dominant position (Article 102 TFEU). It begins with an overview of EU competition law and a consideration of the objectives of the rules. It then discusses the enforcement and consequences of infringement, and how Articles 101 and 102 have been interpreted. In particular, who Articles 101 and 102 TFEU apply to, when they apply, and how anticompetitive agreements and conduct are identified. It also sets out some case studies involving agreements and dominant firm conduct which may infringe Articles 101 and 102.

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Cover European Union Law

17. Competition law  

Alison Jones and Christopher Townley

This chapter examines the two core competition rules that govern anti-competitive agreements (Article 101 TFEU) and abuse of a dominant position (Article 102 TFEU). It begins with an overview of EU competition law. It then discusses the enforcement and consequences of infringement; who Articles 101 and 102 TFEU apply to and when they apply. It also identifies anti-competitive agreements and conduct.

Chapter

Cover Steiner & Woods EU Law

26. Introduction to EU competition policy  

This chapter examines the competition policy in the European Union (EU), discusses the economics of the social market, and describes the structure and objectives of EU competition provisions and policy. The chapter focuses on Articles 101 and 102 TFEU and covers the basic principles established by Regulation 1/2003. It highlights the decentralisation of the enforcement of competition policy. It also explores policies on competition with third countries. The chapter highlights the complexities that can arise when law and economics interact and reveals the difficult role of the Court of Justice (CJ) to make complex assessments of economics.

Chapter

Cover Competition Law of the EU and UK

22. Competition law and intellectual property  

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.

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9. Horizontal Agreements—Cartels and Collusion  

Alison Jones, Brenda Sufrin, and Niamh Dunne

This chapter examines how EU competition law applies both to undertakings operating cartels and to undertakings that tacitly coordinate their behaviour on a market. It starts by looking at the difference between ‘explicit’ and ‘tacit’ collusion. The chapter then deals with cartels and other agreements akin to cartels, or which may facilitate explicit or tacit collusion on a market. Next, it considers the problem of tacit collusion and whether, in particular, Articles 101 and 102 operate as effective mechanisms for dealing with the oligopoly problem. The chapter also considers other options that EU competition law might offer to deal with tacit collusion, either ex ante or ex post, such as the use of the concept of collective dominance and sector inquiries under Regulation 1/2003, Article 17.

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Cover Complete EU Law

15. Enforcement of EU competition law  

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter discusses the enforcement of EU competition law. It covers the enforcement regime; burden of proof; the relationship between Articles 101 and 102 TFEU, and national competition laws; cooperation with national authorities; cooperation with national courts; the powers of the competition authorities of the Member States; the European Commission’s powers; safeguards for undertakings; the 2006 Leniency Notice; and private enforcement, as well as the impact of Brexit on the enforcement of EU competition law.

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11. Vertical Agreements  

This chapter, which discusses EU competition policy towards vertical agreements, begins by outlining the choices available to a supplier when deciding how best to market and sell its products or services to customers, and the impact that the competition rules may have on a supplier's choice, including the treatment of agency agreements. It then discusses the EU approach to vertical agreements, in the light of the Commission’s Verticals Guidelines of 2010, including exclusive dealing, single branding, franchising andselective distribution agreements, and the review of the 2010 regime. It considers the importance in EU law of parallel trade between Member States and how this has influenced policy towards vertical restraints. It analyses the application of Article 101(1) and Article 101(3) to vertical agreements, including the Verticals block exemption of 2010; sub-contracting agreements; and the possible application of Article 102 to distribution agreements.

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9. Horizontal Agreements—Cartels and Collusion  

This chapter examines how EU competition law applies both to undertakings operating cartels and to undertakings that tacitly coordinate their behaviour on a market. It starts by looking at the difference between ‘explicit’ and ‘tacit’ collusion in the light of the theory of games and the ‘prisoners’ dilemma’. The chapter then deals with cartels and other agreements akin to cartels, or which may facilitate explicit or tacit collusion on a market. Next, it considers the problem of tacit collusion and whether, in particular, Articles 101 and 102 operate as effective mechanisms for dealing with the oligopoly problem. The chapter also considers other options that EU competition law might offer to deal with tacit collusion, either ex ante or ex post, such as the use of the concept of collective dominance and sector enquiries under Regulation 1/2003, art 17.

Chapter

Cover Steiner & Woods EU Law

27. EU competition law  

This chapter examines the core elements of competition law in the European Union (EU). It provides a number of examples of the types of agreements covered by EU competition law and shows the dangers which may arise when independent undertakings come together to coordinate their activities to distort competition. The chapter reviews the impact of anti-competitive agreements on the internal market and focuses on the abuse of market power and controls over concentrations. Overall, the chapter discusses the provisions and enforcement of Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU).

Chapter

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27. Competition Law: Article 101  

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. EU competition law covers anti-competitive agreements between firms, abuse of a dominant position, and mergers. Article 101 TFEU is the principal vehicle for the control of anti-competitive agreements. This chapter examines its key features. These include: the meaning given to the terms agreement and concerted practice; the relationship between Article 101(1) and (3); the extent to which economic analysis does and should take place within Article 101(1); and the interpretation accorded to Article 101(3), including whether non-economic factors can be taken into account. The discussion then shifts to more detailed examination of vertical agreements, followed by an outline of the reform of the enforcement regime for Articles 101 and 102. The UK version contains a further section analysing issues concerning EU competition law and the UK post-Brexit.

Chapter

Cover EU Law

27. Competition Law: Article 101  

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. EU competition law covers anti-competitive agreements between firms, abuse of a dominant position, and mergers. Article 101 TFEU is the principal vehicle for the control of anti-competitive agreements. This chapter examines its key features. These include: the meaning given to the terms agreement and concerted practice; the relationship between Article 101(1) and (3); the extent to which economic analysis does and should take place within Article 101(1); and the interpretation accorded to Article 101(3), including whether non-economic factors can be taken into account. The discussion then shifts to more detailed examination of vertical agreements, followed by an outline of the reform of the enforcement regime for Articles 101 and 102. The UK version contains a further section analysing issues concerning EU competition law and the UK post-Brexit.

Chapter

Cover Competition Law of the EU and UK

11. The Chapter I Prohibition  

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.

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.

Book

Cover Jones & Sufrin's EU Competition Law

Brenda Sufrin, Niamh Dunne, and Alison Jones

EU Competition Law: Text, Cases, and Materials provides a complete guide to European competition law in a single authoritative volume. Carefully selected extracts from key cases, academic articles, and statutory materials are accompanied by in-depth author commentary from three experienced academics in the field. Thorough footnoting and referencing give a tour of the available literature, making this an ideal text and stand-alone resource for undergraduate and postgraduate students, as well as for competition law scholars engaged in specialised study. This eighth edition has been fully updated with detailed coverage and commentary on recent developments. These include contemporary concerns about the objectives, interpretation, and application of competition law in the light of sustainability imperatives including the EU’s Green Deal, worldwide economic and political upheaval stemming in particular from the Covid-19 pandemic and the war in Ukraine, and continuing developments in the digital economy; the EU Courts’ judgments on Articles 101, 102, and mergers including Intel (RENV), Google and Alphabet, Google (Android), Slovak Telekom, Generics, Lundbeck, and CK Telecoms; cases on the Commission’s enforcement powers and judicial review, including Sped-Pro and Slovak Telekom; new legislation, guidelines, and notices (in final form or draft) on vertical agreements, horizontal agreements, and market definition; Commission actions in the pharmaceutical, energy, and financial sectors, including interaction with regulatory rules, liberalisation programmes, and intellectual property law; private litigation in the wake of the directive on damages, including the Court’s judgments in Sumal and Paccar; and thorough discussion of ongoing developments in competition law such as the Commission’s enforcement policy against cartels, the appraisal of mergers, the use of commitments decisions, the use of comfort letters during Covid-19 and the Commission’s revised notice on informal guidance, and the increasing activity by national competition authorities. The eighth edition contains an entirely new chapter on the digital economy, including detailed coverage of the Digital Markets Act.

Book

Cover Jones & Sufrin's EU Competition Law

Alison Jones, Brenda Sufrin, and Niamh Dunne

EU Competition Law: Text, Cases, and Materials provides a complete guide to European competition law in a single authoritative volume. Carefully selected extracts from key cases, academic articles, and statutory materials are accompanied by in-depth author commentary from three experienced academics in the field. Thorough footnoting and referencing give a tour of the available literature, making this an ideal text and stand-alone resource for undergraduate and postgraduate students, as well as for competition law scholars engaged in specialized study. This seventh edition has been fully updated with detailed coverage and commentary on recent developments. These include the EU Courts’ judgments on Articles 101, 102 and 106 including Intel; cases on the Commission’s enforcement powers and judicial review; new legislation and guidelines on technology transfer; the revised de minimis notice; Commission actions in the digital economy, including the Google case; the directive on damages; and thorough discussion of ongoing developments in competition law such as the Commission's enforcement policy against cartels, the appraisal of mergers, the use of commitments decisions and the compatibility of EU competition procedures with human rights provisions.

Chapter

Cover Jones & Sufrin's EU Competition Law

2. The Competition Law and Institutions of the European Union  

Alison Jones, Brenda Sufrin, and Niamh Dunne

This chapter sketches the history and functions of the EU and its institutions in order to set the EU competition rules in context. It then describes the competition provisions themselves and outlines the way in which the rules are applied and enforced, including the public enforcement of Articles 101 and 102 under Regulation 1/2003, the control of mergers with a European dimension under Regulation 139/2004, public enforcement by the national competition authorities of the Member States, and the role of private enforcement. It discusses the position and powers of the European Commission, particularly the role of the Competition Directorate General (DG Comp); the powers of the EU Courts; the significance of fundamental rights and the general principles of EU law in competition cases; the application of competition rules to particular sectors of the economy; and the application of the EU rules to the EEA.