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Chapter

Cover Mayson, French & Ryan on Company Law

12. Market abuse  

This chapter deals with abuses committed in the trading of shares, with particular reference to insider dealing and market manipulation, and the laws intended to control them. The chapter considers forms of control to prevent market abuse under three key pieces of legislation: Regulation (EU) No 596/2014, the Criminal Justice Act 1993 and the Financial Services Act 2012. It looks at regulations governing disclosure to regulated markets and the fiduciary duty of directors, and offences involving insider dealing and creating a false market. The chapter analyses a particularly significant case: Percival v Wright [1902] 2 Ch 421.

Chapter

Cover Mayson, French, and Ryan on Company Law

12. Market abuse  

This chapter deals with abuses committed in the trading of shares, with particular reference to insider dealing and market manipulation, and the laws intended to control them. The chapter considers forms of control to prevent market abuse under three key pieces of legislation: Regulation (EU) No 596/2014, the Criminal Justice Act 1993 and the Financial Services Act 2012. It looks at regulations governing disclosure to regulated markets and the fiduciary duty of directors, and offences involving insider dealing and creating a false market. The chapter analyses a particularly significant case: Percival v Wright [1902] 2 Ch 421.

Chapter

Cover Sealy & Worthington's Text, Cases, and Materials in Company Law

15. Reconstructions, Mergers and Takeovers  

This chapter considers public disclosure, market regulation and the public investigation of companies. The ‘price’ that companies are required to pay for the privilege of incorporation (separate personality) and limited liability is compulsory publicity about their affairs. The Companies Acts’ disclosure rules are largely based on this philosophy. This chapter discusses general disclosure obligations; public regulation of securities markets; transparency obligations; disclosure and public offerings of shares; market abuse and market manipulation; and public investigation of companies.

Chapter

Cover Introduction to Business Law

18. Company Law III  

Company Meetings, Shareholder Protection, and Liquidation of Companies

This chapter discusses the different types of company meetings and how meetings are convened and managed. It examines the different types of resolutions that may be made by shareholders both at meetings and outside meetings, and the rights of shareholders to propose their own resolutions. It explains the difference between voting by a show of hands and voting by poll. It considers the protection given by law to minority shareholders. It discusses the meaning of insider dealing and market abuse and the penalties they attract. The chapter concludes with a discussion of methods by which a company can be wound up and the meaning of wrongful and fraudulent trading.

Chapter

Cover Company Law

Insider dealing and market abuse  

Part V of this text looked at the rules relating to corporate finance and transparency. An important justification for corporate disclosure is the need to ensure that sufficient information is publicly available, so that a company’s securities can be accurately priced. Certain persons may seek to benefit from non-publicly available information to benefit themselves or engage in conduct designed to manipulate a company’s share price. This additional online chapter discusses the law’s response to this issue by discussing the offence of insider dealing, the market abuse regime, and the offences relating to financial services.

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

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

Chapter

Cover EU Law

28. Competition Law: Article 102  

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 focuses on another principal provision concerned with competition policy: Article 102 TFEU. The essence of Article 102 is the control of market power, whether by a single firm or, subject to certain conditions, a number of firms. Monopoly power can lead to higher prices and lower output than would prevail under more normal competitive conditions, and this is the core rationale for legal regulation in this area. Article 102 does not, however, prohibit market power per se. It proscribes the abuse of market power. Firms are encouraged to compete, with the most efficient players being successful. The UK version contains a further section analysing issues concerning EU competition law and the UK post-Brexit. EU law

Chapter

Cover EU Law

28. Competition Law: Article 102  

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 focuses on another principal provision concerned with competition policy: Article 102 TFEU. The essence of Article 102 is the control of market power, whether by a single firm or, subject to certain conditions, a number of firms. Monopoly power can lead to higher prices and lower output than would prevail under more normal competitive conditions, and this is the core rationale for legal regulation in this area. Article 102 does not, however, prohibit market power per se. It proscribes the abuse of market power. Firms are encouraged to compete, with the most efficient players being successful. The UK version contains a further section analysing issues concerning EU competition law and the UK post-Brexit. EU law

Chapter

Cover Contemporary Intellectual Property

20. EU competition law and intellectual property  

This chapter provides an overview of the tension between the application of competition law and the exercise of IPRs. Key issues are the circumstances in which competition law may be applied to moderate the exercise of IPRs in the relevant market; clauses in intellectual property (IP) licensing agreements between undertakings that might be permissible in terms of EU competition law and those which are not; the conditions under which a refusal to supply products protected by an IP right might constitute an abuse of a dominant position by the right holder; and when competition law can provide a defence to an infringement action.

Book

Cover Competition Law

Richard Whish and David Bailey

The book explains the purpose of competition policy, introduces the reader to key concepts and techniques in competition law and provides insights into the numerous different issues that arise when analysing market behaviour. Describing the law in its economics and market context, the chapters particularly consider the competition law implications of business phenomena, including distribution agreements, licences of intellectual property rights, cartels, joint ventures and mergers. The book assimilates a wide variety of resources, including judgments, decisions, guidelines and periodical literature. The text has been updated to include the changes to UK law introduced by the Consumer Rights Act 2015, including the reform of collective actions. It also considers the Directive on Antitrust Damages Actions and other measures designed to facilitate private enforcement of competition law. The book also discusses for the first time the application of competition law to price signalling, algorithmic collusion and other atypical cartel activities; it also incorporates extensive new case law and decisional practice at EU and UK level.

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.

Chapter

Cover Contemporary Intellectual Property

20. EU competition law and intellectual property  

This chapter provides an overview of the tension between the application of European Union (EU) competition law and the exercise of intellectual property (IP) rights. Key issues are the circumstances in which competition law may be applied to moderate the exercise of IP rights in the relevant market; clauses in intellectual property licensing agreements between undertakings that might be permissible in terms of EU competition law and those which are not; the conditions under which a refusal to supply products protected by an IP right might constitute an abuse of a dominant position by the right holder; and when competition law can provide a defence to an infringement action. The chapter also considers the implications of Brexit.

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

Cover Competition Law

14. Horizontal agreements (2): oligopoly, tacit collusion and collective dominance  

Oligopoly exists where a few firms between them supply all or most of the goods or services on a market without any of them having a clear ascendancy over the others. The purpose of this chapter is to examine whether oligopoly presents a particular problem for competition policy and, if so, how that problem should be overcome. The chapter discusses the theory of oligopolistic interdependence and how oligopolies can lead to a well-known problem for competition law and policy: oligopolists are able, by virtue of the characteristics of the market, to behave in a parallel manner and to derive benefits from their collective market power without, or without necessarily, entering into an agreement or concerted practice of the kind generally prohibited by competition law. This phenomenon is known in economics as ‘tacit collusion’ and is the result of each firm’s individual and rational response to market conditions. The chapter identifies possible ways of dealing with the ‘oligopoly problem’, before considering the extent to which Articles 101 and 102 can be used to address that problem. The chapter also discusses UK law and, in particular, the possible use of the market investigations to address market failure that may arise in oligopolies.

Book

Cover Competition Law

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.

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 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 European Union Law

17. Competition Law  

Private Undertakings

This chapter assesses the EU competition law on private undertakings. The relevant Treaty section is here built upon three pillars. The first pillar deals with anticompetitive cartels and can be found in Article 101 of the Treaty on the Functioning of the European Union (TFEU). The second pillar concerns situations where a dominant undertaking abuses its market power and is found in Article 102. The third pillar is unfortunately invisible, for when the Treaties were concluded, they did not mention the control of mergers. This constitutional gap has never been closed by later Treaty amendments, yet it has received a legislative filling in the form of the EU Merger Regulation.

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