This chapter provides an outline of the operation of Chapter II Prohibition, pointing out the relevant guidelines and decisions. This Chapter II Prohibition, contained in section 18 of the Competition Act 1998 (CA), is the UK domestic equivalent of Article 102 TFEU. It is to be applied, and its terms interpreted, in a way that is consistent with the application of Article 102 TFEU, unless there is a ‘relevant difference’. If Article 102 TFEU is applicable to any practice being examined under Chapter II Prohibition, it must be applied. A breach of Chapter II Prohibition may incur penalties, damages, and a requirement of conduct modification.
Chapter
15. The Chapter II Prohibition
Chapter
21. State intervention: public undertakings and state aid
Competition law in the EU also exerts some degree of control over the actions of the Member States when they intervene in the market in ways which could harm the competitive process. The Member States commit to complying with these and other obligations the moment they agree to be bound by the acquis unionaire, which is a prerequisite for EU membership. There are two main provisions in this regard: Articles 106 and 107 TFEU. This chapter covers the basic principles underlying the application of Articles 106 and 107 TFEU, and explores the interplay between the general prohibitions they contain and their multiple exceptions. Article 106 ensures that undertakings owned, established, or regulated by the State are not protected or advantaged vis-à-vis private competitors, while Article 107 TFEU contains a general prohibition of state aid.
Chapter
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.
Chapter
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
4. Direct actions in the Court of Justice of the European Union
Articles 258–260, 263, 265, 277, and 340 TFEU
Matthew J. Homewood and Clare Smith
This chapter discusses articles in the Treaty on the Functioning of the European Union (TFEU) that provide for actions that are brought directly before the Court. Under Articles 258 and 259 TFEU, respectively, the European Commission and Member States may bring enforcement proceedings against a Member State in breach of Treaty obligations. Article 260 TFEU, requires compliance with the Court’s judgment. Article 263 TFEU concerns judicial review of EU acts. The outcome of a successful action is annulment. Article 265 TFEU provides for actions against the EU institutions for failure to act.
Chapter
6. Free movement of persons
Matthew J. Homewood and Clare Smith
This chapter discusses the law on the free movement of persons in the EU. Free movement of persons is one of the four ‘freedoms’ of the internal market. Original EC Treaty provisions granted free movement rights to the economically active: workers, persons exercising the right of establishment, and persons providing services in another Member State. The Treaty also set out the general principle of non-discrimination on grounds of nationality, ‘within the scope of application of the Treaty’. All these provisions are now contained in the Treaty on the Functioning of the European Union (TFEU). Early secondary legislation granted rights to family members, students, retired persons, and persons of independent means. The Citizenship Directive 2004/38 consolidated this legislation.
Chapter
16. Exceptions to the free movement rules
Niamh Nic Shuibhne
This chapter examines when Member States can lawfully displace the obligations placed on them by free movement law. Free movement rights can be restricted under EU law in two ways. For discriminatory or distinctly applicable restrictive measures, a derogation ground expressly provided for in the TFEU must be engaged. For indirectly or non-discriminatory measures, that is, indistinctly applicable restrictive measures, if an overriding requirement relating to the public interest can be demonstrated the measure will be lawful. In both cases, the restriction also has to satisfy a proportionality test, that is, it is both appropriate and necessary for achieving the relevant public interest objective.
Chapter
16. Exceptions to the free movement rules
Niamh Nic Shuibhne
This chapter examines when Member States can lawfully displace the obligations placed on them by free movement law. Free movement rights can be restricted under EU law in two ways. For discriminatory or distinctly applicable restrictive measures, a derogation ground expressly provided for in the TFEU must be engaged. For indirectly or non-discriminatory measures, that is, indistinctly applicable restrictive measures, if an overriding requirement relating to the public interest can be demonstrated the measure will be lawful. In both cases, the restriction also has to satisfy a proportionality test—that is, it is both appropriate and necessary for achieving the relevant public interest objective.
Chapter
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.
Chapter
14. The elements of Article 102 TFEU
This chapter discusses Article 102 TFEU, which applies to abusive conduct engaged in by undertakings in a dominant position. The dominant position must be held in a ‘substantial part’ of the internal market for EU competition law to apply. Abuses can take many forms, and include conduct designed to preserve or expand the power of the undertaking (‘exclusionary abuses’) and conduct aiming to exploit the power of the undertaking (‘exploitative abuses’). No exemptions are available, but the alleged abusive conduct may be defended on the grounds that it is ‘objectively justifiable’ or if there are efficiency justifications. A breach of Article 102 TFEU may incur penalties, damages, and a requirement of conduct modification.
Chapter
5. Free movement of goods
Matthew J. Homewood and Clare Smith
This chapter discusses the law on the free movement of goods in the EU. Free movement of goods is one of the four ‘freedoms’ of the internal market. Obstacles to free movement comprise tariff barriers to trade (customs duties and charges having equivalent effect), non-tariff barriers to trade (quantitative restrictions and measures having equivalent effect), and discriminatory national taxation. The Treaty on the Functioning of the European Union (TFEU) prohibits all kinds of restrictions on trade between Member States. Article 30 TFEU prohibits customs duties and charges having equivalent effect; Article 34 TFEU prohibits quantitative restrictions and all measures having equivalent effect; and Article 110 TFEU prohibits discriminatory national taxation.
Chapter
17. Damages Actions and Money Claims
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. Article 340 of the Treaty on the Functioning of the European Union (TFEU) governs compensation against the EU. It leaves the Court of Justice of the European Union with considerable room for interpretation, and directs it to consider the general principles common to the laws of the Member States. The key issue is the test for liability where losses are caused by EU acts that are illegal. The Court has fashioned different tests for cases where the challenged act is of a discretionary nature and for those where it is not. This chapter discusses the application of Article 340 in relation to discretionary and non-discretionary EU acts, official acts of Union servants, valid legislative acts, causation and damage, joint liability for the EU and Member States, contractual liability, and restitution. The UK version contains a further section analysing the relevance of Article 340 in relation to the UK post-Brexit.
Chapter
25. Equal Treatment and Non-Discrimination: On Grounds of Sex, Race, Disability, Religion or Belief, and Age
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. This chapter discusses EU anti-discrimination law, which, over the past decade and a half, has expanded significantly to cover a wide range of grounds and contexts. In addition to requiring equal treatment for women and men, the Treaty provides legislative competence to combat discrimination on a range of grounds. The Charter of Fundamental Rights, which has a chapter devoted to equality, has been incorporated into the EU Treaties. Article 21 of the Charter prohibits discrimination on any ground. Articles 8 and 10 of the Treaty on the Functioning of the European Union (TFEU) contain horizontal clauses requiring the EU to promote equality between men and women, and to combat discrimination based on certain grounds, namely sex, racial or ethnic origin, religion or belief, disability, age, or sexual orientation in all of its policies and activities. The UK version contains a further section analysing issues concerning EU discrimination law and the UK post-Brexit.
Chapter
31. The State and the Common Market
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. This chapter examines the way in which the actions of the state can infringe the Treaty. The Treaty contains a number of relevant provisions, including Article 4(3) TEU, and Articles 14, 34, 101, 102, 106, and 107–109 TFEU. While there are valid reasons for EU controls, the topics discussed raise important issues concerning the very nature of the EU. Thus, the jurisprudence under Article 106 has prompted questions about how far it is possible for a state to entrust certain activities to a public monopoly, or to a private firm that has exclusive rights. The UK version contains a further section analysing issues concerning state aids and the UK post-Brexit.
Chapter
17. Damages Actions and Money Claims
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. Article 340 of the Treaty on the Functioning of the European Union (TFEU) governs compensation against the EU. It leaves the Court of Justice of the European Union with considerable room for interpretation, and directs it to consider the general principles common to the laws of the Member States. The key issue is the test for liability where losses are caused by EU acts that are illegal. The Court has fashioned different tests for cases where the challenged act is of a discretionary nature and for those where it is not. This chapter discusses the application of Article 340 in relation to discretionary and non-discretionary EU acts, official acts of Union servants, valid legislative acts, causation and damage, joint liability for the EU and Member States, contractual liability, and restitution. The UK version contains a further section analysing the relevance of Article 340 in relation to the UK post-Brexit.
Chapter
25. Equal Treatment and Non-Discrimination
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. This chapter discusses EU anti-discrimination law, which, over the past decade and a half, has expanded significantly to cover a wide range of grounds and contexts. In addition to requiring equal treatment for women and men, the Treaty provides legislative competence to combat discrimination on a range of grounds. The Charter of Fundamental Rights, which has a chapter devoted to equality, has been incorporated into the EU Treaties. Article 21 of the Charter prohibits discrimination on any ground. Articles 8 and 10 of the Treaty on the Functioning of the European Union (TFEU) contain horizontal clauses requiring the EU to promote equality between men and women, and to combat discrimination based on certain grounds, namely sex, racial or ethnic origin, religion or belief, disability, age, or sexual orientation in all of its policies and activities. The UK version contains a further section analysing issues concerning EU discrimination law and the UK post-Brexit.
Chapter
30. The State and the Common Market
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. This chapter examines the way in which the actions of the state can infringe the Treaty. The Treaty contains a number of relevant provisions, including Article 4(3) TEU, and Articles 14, 34, 101, 102, 106, and 107-109 TFEU. While there are valid reasons for EU controls, the topics discussed raise important issues concerning the very nature of the EU. Thus, the jurisprudence under Article 106 has prompted questions about how far it is possible for a state to entrust certain activities to a public monopoly, or to a private firm that has exclusive rights. The UK version contains a further section analysing issues concerning state aids and the UK post-Brexit.
Chapter
17. Damages Actions and Money Claims
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. Article 340 of the Treaty on the Functioning of the European Union (TFEU) governs compensation against the EU. It leaves the Court of Justice of the European Union with considerable room for interpretation, and directs it to consider the general principles common to the laws of the Member States. The key issue is the test for liability where losses are caused by EU acts that are illegal. The Court has fashioned different tests for cases where the challenged act is of a discretionary nature and for those where it is not. This chapter discusses the application of Article 340 in relation to discretionary and non-discretionary EU acts, official acts of Union servants, valid legislative acts, causation and damage, joint liability for the EU and Member States, contractual liability, and restitution. The UK version contains a further section analysing the relevance of Article 340 in relation to the UK post-Brexit.
Chapter
25. Equal Treatment and Non-Discrimination: On Grounds of Sex, Race, Disability, Religion or Belief, and Age
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. This chapter discusses EU anti-discrimination law, which, over the past decade and a half, has expanded significantly to cover a wide range of grounds and contexts. In addition to requiring equal treatment for women and men, the Treaty provides legislative competence to combat discrimination on a range of grounds. The Charter of Fundamental Rights, which has a chapter devoted to equality, has been incorporated into the EU Treaties. Article 21 of the Charter prohibits discrimination on any ground. Articles 8 and 10 of the Treaty on the Functioning of the European Union (TFEU) contain horizontal clauses requiring the EU to promote equality between men and women, and to combat discrimination based on certain grounds, namely sex, racial or ethnic origin, religion or belief, disability, age, or sexual orientation in all of its policies and activities. The UK version contains a further section analysing issues concerning EU discrimination law and the UK post-Brexit.
Chapter
31. The State and the Common Market
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. This chapter examines the way in which the actions of the state can infringe the Treaty. The Treaty contains a number of relevant provisions, including Article 4(3) TEU, and Articles 14, 34, 101, 102, 106, and 107–109 TFEU. While there are valid reasons for EU controls, the topics discussed raise important issues concerning the very nature of the EU. Thus, the jurisprudence under Article 106 has prompted questions about how far it is possible for a state to entrust certain activities to a public monopoly, or to a private firm that has exclusive rights. The UK version contains a further section analysing issues concerning state aids and the UK post-Brexit.
