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 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
29. Competition Law: Article 102
Chapter
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
29. 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 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
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
23. EU Competition Law
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. This chapter also 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 anticompetitive 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
3. Market Power, Market Definition, and Barriers to Entry
Alison Jones, Brenda Sufrin, and Niamh Dunne
Market power is a central concept in EU competition law. This chapter considers what is meant by market power and how it is assessed in EU law using market definition and barriers to entry analysis. It discusses how markets are defined in EU law by looking at demand substitution, supply substitution, and potential competition. It explains that markets may have both a product and a geographic dimension. The chapter examines the draft new Commission Notice on the definition of the relevant market to replace the 1997 Notice, the decisional practice of the Commission, and the case law of the EU Courts on market definition, and it discusses what tests may be employed in the definition of markets, particularly the SSNIP test. The chapter then considers how the power of a firm on a market is affected by barriers to entry. It discusses the definition of a barrier to entry and considers barriers to entry such as sunk costs, structural barriers, and strategic barriers,
Chapter
14. Competition law: Article 102 TFEU
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 focuses on Article 102 TFEU, which prohibits as incompatible with the internal market ‘any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it … in so far as it may affect trade between Member States’. It also discusses the enforcement of Article 102 by the European Commission, national competition authorities, and national courts under powers conferred by Regulation 1/2003. Finally, it mentions the current impact of Brexit on EU competition law.
Book
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
1. Competition policy and economics
This chapter provides an overview of competition law and its economic context. Section 2 describes the practices that competition laws attempt to control in order to protect the competition process. Section 3 examines the theory of competition and gives an introductory account of why the effective enforcement of competition law is thought to be beneficial for consumer welfare. Section 4 considers the expected functions of a system of competition law. Section 5 then introduces two key economic concepts, market definition and market power, that are important to a better understanding of competition policy. The chapter concludes with a table of market share figures that are significant in the application of EU and UK competition law.
Chapter
22. Mergers (3): UK law
This chapter provides an overview of the UK system of merger control and explains the procedure of the Competition and Markets Authority (‘the CMA’) when determining whether a merger should be referred for an in-depth ‘Phase 2’ investigation and when deciding to accept ‘undertakings in lieu’ of a reference. It describes how Phase 2 investigations are conducted and discusses the way in which the CMA applies the ‘substantially lessening competition’ (‘SLC’) test in practice. It then explains the enforcement powers in the Enterprise Act 2002, including the remedies that the CMA can impose in merger cases, and discusses various supplementary matters, such as powers of investigation and enforcement. The chapter concludes with a discussion of how the merger control provisions work in practice and provides a brief account of the provisions on public interest cases, other special cases and mergers in the water industry.
Chapter
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.
