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
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
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
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
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).
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
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.
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.
