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Cover Jones & Sufrin's EU Competition Law

4. Article 101 TFEU: The Elements  

Alison Jones, Brenda Sufrin, and Niamh Dunne

This chapter discusses the text and scheme of Article 101 which prohibits agreements, decisions, and concerted practices which restrict competition and affect trade between Member States. It explains the terms employed in Article 101(1) and how they are interpreted and applied. In particular, it discusses: the meaning of ‘undertaking’ and ‘association of undertakings’, including the concepts of ‘economic activities’ and of a ‘single economic entity’; the meaning of ‘agreement’ including the coverage of both horizontal and vertical agreements; the meaning of ‘concerted practice’; the meaning of ‘decisions by associations of undertakings’; the application of Article 101(1) to complex arrangements and single continuous infringements; and the meaning of an appreciable effect on trade between Member States.

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 Smith & Wood's Employment Law

8. Redundancy, reorganization, and transfers of undertakings  

This chapter discusses issues concerning an employer facing hard times or stiff competition, which may need to sell or contract out part of its operation, dismiss some employees, or change the terms and conditions of work. It tackles these situations together both for the practical benefit of grouping issues that arise from similar factual settings and for the analytical coherence of dealing together with protections designed to balance worker interests in job security with the general economic interest in lean, efficient, and flexible enterprise. The statutory definition of ‘redundancy’ is examined and is contrasted with termination of employment, or change in terms of employment, for other economic reasons. The chapter then deals with statutory redundancy payments and collective consultation on collective dismissals (whether for redundancy or other reasons). The discussion then focuses on distinctions in how tribunals assess the fairness of redundancy dismissals as opposed to other dismissals caused by reorganization which are categorized as being for ‘some other substantial reason’. Finally, the chapter addresses the law governing the transfer of undertakings, or ‘TUPE’, covering the transfer to the new employer of individual and collective relationships, the protection of existing terms and conditions, and the legality of transfer-related dismissals and transfer-related changes to the employment contract.

Chapter

Cover Competition Law

3. Article 101(1)  

This chapter discusses Article 101(1) of the Treaty on the Functioning of the European Union (TFEU), which prohibits agreements, decisions by associations of undertakings and concerted practices that restrict competition. It begins by explaining the terms ‘undertakings’ and ‘associations of undertakings’. It then considers what is meant by the terms ‘agreements’, ‘decisions’ and ‘concerted practices’, as well as what is meant by the phrase ‘prevention, restriction and distortion of competition’ that serves as the purpose of the provision. The chapter then deals with the de minimis doctrine, before explaining the requirement of an effect on trade between Member States. The chapter concludes with a checklist of agreements that, for a variety of reasons, normally fall outside Article 101(1).

Chapter

Cover Smith & Wood's Employment Law

8. Redundancy, reorganization, and transfers of undertakings  

Ian Smith, Owen Warnock, and Gemma Mitchell

This chapter discusses issues which arise when an employer faces hard times or stiff competition. The employer may need to sell or contract out part of its operation, dismiss some employees, or change the terms and conditions of work. The statutory definition of ‘redundancy’ is examined and is contrasted with termination of employment, or change in terms of employment, for other economic reasons. The chapter then deals with statutory redundancy payments and collective consultation on collective dismissals (whether for redundancy or other reasons). The discussion then focuses on how tribunals assess the fairness of redundancy dismissals and on the different approach taken as to the fairness of dismissals caused by reorganization which are categorized as being for ‘some other substantial reason’. Finally, the chapter addresses ‘TUPE’, which is the law governing the transfer of undertakings and situation where a service provider loses or gains a contract. The issues relate to the transfer to the new employer of individual and collective relationships, the protection of existing terms and conditions, and the legality of transfer-related dismissals and transfer-related changes to the employment contract.

Chapter

Cover Company Law

12. Vacation of office and disqualification  

This chapter looks at the various ways in which a director can cease to be a director: resignation; vacation of office in accordance with the articles; retirement by rotation; removal; and disqualification. A director can resign at any time by giving notice to the company, which must accept their resignation. A company’s articles can specify what circumstances will cause a director to vacate office, as well as requiring its directors to periodically vacate office and, if they so wish, seek re-election. Section 168 of the Companies Act 2006 (CA 2006) provides that a director can be removed from office by a company passing an ordinary resolution at a meeting. Meanwhile, under the Company Directors Disqualification Act 1986, a director can be disqualified from acting as a director, either by the court imposing a disqualification order or by the Secretary of State accepting a disqualification undertaking from the director in question.

Chapter

Cover Essential Cases: Tort Law

Hedley Byrne & Co. Ltd v Heller & Partners Ltd [1964] AC 465  

Essential Cases: Tort Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Hedley Byrne & Co. Ltd v Heller & Partners Ltd [1964] AC 465. The document also included supporting commentary from author Craig Purshouse.

Chapter

Cover Essential Cases: Tort Law

White v Jones [1995] 2 AC 207  

Essential Cases: Tort Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in White v Jones [1995] 2 AC 207. The document also included supporting commentary from author Craig Purshouse.

Chapter

Cover Essential Cases: Tort Law

Hedley Byrne & Co. Ltd v Heller & Partners Ltd [1964] AC 465  

Essential Cases: Tort Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Hedley Byrne & Co. Ltd v Heller & Partners Ltd [1964] AC 465. The document also included supporting commentary from author Craig Purshouse.

Chapter

Cover Essential Cases: Tort Law

White v Jones [1995] 2 AC 207  

Essential Cases: Tort Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in White v Jones [1995] 2 AC 207. The document also included supporting commentary from author Craig Purshouse.

Chapter

Cover EU Law Concentrate

8. EU competition law  

Articles 101 and 102 TFEU

Matthew J. Homewood and Clare Smith

Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) prohibit anti-competitive business practices. The European Commission, national competition authorities, and national courts enforce Articles 101 and 102 under powers conferred by Regulation 1/2003. From time to time, the European Commission issues non-binding notices providing clarification of the competition rules. This chapter begins with an outline of Articles 101 and 102 and the rules on enforcement. It then looks at the two Treaty provisions in detail. In broad terms, Article 101 prohibits business agreements or arrangements which prevent, restrict, or distort competition within the internal market and affect trade between Member States whilst Article 102 prohibits, as incompatible with the internal market, any abuse by undertakings in a dominant position within the internal market insofar as it may affect trade between Member States. It should be noted at the outset that ‘dominance’ itself is not prohibited, but only when such dominance is accompanied with abusive behaviour that may affect trade.

Chapter

Cover Employment Law Concentrate

11. Continuity of employment and TUPE  

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses continuous employment and the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). An employee’s period of continuous employment begins on the day on which the employee starts work. Although continuity provisions normally apply to employment by one employer, there are situations where a transfer from one employer to another can preserve continuity of employment. One such situation is when there is a relevant transfer under TUPE. TUPE acts to ensure that an individual’s contract of employment is transferred in its entirety when the individual employee experiences a change of employer as a result of a transfer.

Chapter

Cover Employment Law

23. TUPE  

The Transfer of Undertakings Protection of Employment (TUPE) Regulations aim to protect the interests of employees when the business they work for changes hands, or when their part of an operation is acquired or transferred to another business. They also apply in merger situations, when in-house processes are outsourced, when a contract to provide a service transfers from one provider to another, and when a public sector body such as a local authority ‘contracts out’ services, or indeed, brings formerly contracted out services back in house. They form a specialised corner of employment law, but one which can be very important for large numbers of people. This chapter discusses core TUPE rights, when TUPE applies, consultation requirements, contractual rights, unfair dismissal rights, sharing of information between transferors and transferees, and TUPE Regulations in respect of the takeover of insolvent businesses.

Chapter

Cover Competition Law

3. Article 101(1)  

This chapter discusses Article 101(1) of the Treaty of Functioning of the European Union (TFEU), which prohibits agreements, decisions by associations of undertakings, and concerted practices that restrict competition. It begins by explaining the meaning of ‘undertakings’ and ‘associations of undertakings’. It then considers what is meant by the terms ‘agreements’, ‘decisions’, and ‘concerted practices’, as well as what is meant by the phrase ‘have as their object or effect the prevention, restriction, and distortion of competition’. The chapter then deals with the de minimis doctrine, before explaining the requirement of an effect on trade between Member States. The chapter concludes with a checklist of agreements that, for a variety of reasons, normally fall outside Article 101(1).

Chapter

Cover Competition Law

11. Enterprise Act 2002: market studies and market investigations  

This chapter describes the UK system of market studies and market investigation references. It begins by describing the CMA’s ‘general function’ of gathering information about markets, followed by an explanation of what is meant by a ‘super-complaint’. It examines the purpose, procedure and outcomes of market studies, including possible outcomes. Market studies sometimes lead to market investigation references, although there are several other possible outcomes of a market study. The chapter describes the making and determination of analyses and the market investigation provisions under Part 4 of the Enterprise Act 2002. Having briefly considered public interest cases, enforcement and other supplementary matters, the chapter discusses how the market investigation provisions have been working in practice. The final section of the chapter briefly refers to the enforcement and review of undertakings and orders still in force under the monopoly provisions in the former Fair Trading Act 1973.

Chapter

Cover Competition Law

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

Cover Selwyn's Law of Employment

9. Transfer of Undertakings  

This chapter considers the transfer of undertakings. It looks at the background and at the legislation, including the Transfer of Undertakings (Protection of Employment) Regulations 2006 and the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014. It discusses what counts as a transfer of a business or undertaking, considering service provision changes and transfers within the public administration. Also covered are the mechanics and effects of the transfer, including statutory rights and the effect on the contract of employment; dismissal on transfers and ETO reasons (economic, organisational or technological reason); refusing a transfer; employee liability information; and remedy for failure to notify employee liability information. It also looks at the effect of transfers on collective agreements and insolvency rights.

Chapter

Cover Jones & Sufrin's EU Competition Law

4. Article 101 TFEU: The Elements  

This chapter discusses the text and scheme of Article 101 which prohibits agreements, decisions and concerted practices which restrict competition and may affect trade between Member States. It explains the terms employed in Article 101(1) and how they are interpreted and applied. This entails a discussion of the meaning of ‘undertaking’ and ‘association of undertakings’, including the concepts of ‘economic activities’ and of a ‘single economic entity’; the meaning of ‘agreement’ including the coverage of both horizontal and vertical agreements; the meaning of ‘concerted practice’; the meaning of ‘decisions by associations of undertakings’; the application of Article 101(1) to complex arrangements and single continuous infringements; and the meaning of an appreciable effect on trade between Member States.

Chapter

Cover Jones & Sufrin's EU Competition Law

8. Competition, the State, and Public Undertakings: Article 106 TFEU  

This chapter examines how competition law applies to the actions of the State when it intervenes in the market through undertakings which it controls or owns or which it places in a privileged position. The discussion includes the principle of Union loyalty in Article 4(3) TEU; Article 106(1); Article 106(2); and the Commission’s supervisory and policing powers in Article 106(3). Article 106(1) is a prohibition addressed to Member States against enacting or maintaining in force any measure in relation to public undertakings or undertakings to which they have granted special or exclusive rights which are contrary to the Treaty rules. The chapter discusses what is meant by ‘public undertakings’ and ‘special or exclusive rights’ and examines in the light of the case law what measures are forbidden by Article 106(1), including those involving the cumulation of rights, the extension of a dominant position from one market to another, and the creation of situations of inequality of opportunity. Article 106(2) gives a limited derogation from Article 106(2) to undertakings entrusted with the operation of services of general economic interest (SGEIs). The chapter discusses the concept of ‘services of general economic interest’ and examines the cases in which the derogation has been applied or not applied, including the application of Article 106(2) to compensation for the provision of SGEIs which constitutes State aid. The chapter also considers Article 106(3) and the question of the direct effect of Article 106(1) and (2).

Chapter

Cover Card & James' Business Law

26. Employment rights, and health and safety  

This chapter examines the employment rights provided by law to employees and workers. It explains that aside from the rights contained in the employment contract, the law provides employees with a number of free-standing rights. These include the right to a national minimum wage, rules relating to the transfer of undertakings, and the numerous family-related rights (for example, maternity and paternity leave/pay, adoption leave/pay, and shared parental leave/pay. This chapter also discusses the mandate for employers to protect the health and safety of their employees and the key provisions of the Health and Safety at Work etc. Act 1974 and the Working Time Regulations 1998.