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Cover Competition Law of the EU and UK

15. The Chapter II Prohibition  

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.

Book

Cover Jones & Sufrin's EU Competition Law

Brenda Sufrin, Niamh Dunne, and Alison Jones

EU Competition Law: Text, Cases, and Materials provides a complete guide to European competition law in a single authoritative volume. Carefully selected extracts from key cases, academic articles, and statutory materials are accompanied by in-depth author commentary from three experienced academics in the field. Thorough footnoting and referencing give a tour of the available literature, making this an ideal text and stand-alone resource for undergraduate and postgraduate students, as well as for competition law scholars engaged in specialised study. This eighth edition has been fully updated with detailed coverage and commentary on recent developments. These include contemporary concerns about the objectives, interpretation, and application of competition law in the light of sustainability imperatives including the EU’s Green Deal, worldwide economic and political upheaval stemming in particular from the Covid-19 pandemic and the war in Ukraine, and continuing developments in the digital economy; the EU Courts’ judgments on Articles 101, 102, and mergers including Intel (RENV), Google and Alphabet, Google (Android), Slovak Telekom, Generics, Lundbeck, and CK Telecoms; cases on the Commission’s enforcement powers and judicial review, including Sped-Pro and Slovak Telekom; new legislation, guidelines, and notices (in final form or draft) on vertical agreements, horizontal agreements, and market definition; Commission actions in the pharmaceutical, energy, and financial sectors, including interaction with regulatory rules, liberalisation programmes, and intellectual property law; private litigation in the wake of the directive on damages, including the Court’s judgments in Sumal and Paccar; and thorough discussion of ongoing developments in competition law such as the Commission’s enforcement policy against cartels, the appraisal of mergers, the use of commitments decisions, the use of comfort letters during Covid-19 and the Commission’s revised notice on informal guidance, and the increasing activity by national competition authorities. The eighth edition contains an entirely new chapter on the digital economy, including detailed coverage of the Digital Markets Act.

Book

Cover Jones & Sufrin's EU Competition Law

Alison Jones, Brenda Sufrin, and Niamh Dunne

EU Competition Law: Text, Cases, and Materials provides a complete guide to European competition law in a single authoritative volume. Carefully selected extracts from key cases, academic articles, and statutory materials are accompanied by in-depth author commentary from three experienced academics in the field. Thorough footnoting and referencing give a tour of the available literature, making this an ideal text and stand-alone resource for undergraduate and postgraduate students, as well as for competition law scholars engaged in specialized study. This seventh edition has been fully updated with detailed coverage and commentary on recent developments. These include the EU Courts’ judgments on Articles 101, 102 and 106 including Intel; cases on the Commission’s enforcement powers and judicial review; new legislation and guidelines on technology transfer; the revised de minimis notice; Commission actions in the digital economy, including the Google case; the directive on damages; and thorough discussion of ongoing developments in competition law such as the Commission's enforcement policy against cartels, the appraisal of mergers, the use of commitments decisions and the compatibility of EU competition procedures with human rights provisions.

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 Competition Law of the EU and UK

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

Cover Jones & Sufrin's EU Competition Law

2. The Competition Law and Institutions of the European Union  

This chapter sketches the history and functions of the EU and its institutions in order to set the EU competition rules in context. It then describes the competition provisions themselves and outlines the way in which the rules are applied and enforced, including the public enforcement of Articles 101 and 102 under Regulation 1/2003, the control of mergers with a European dimension under Regulation 139/2004, public enforcement by the national competition authorities of the Member States, and the role of private enforcement. It discusses the position and powers of the European Commission, particularly the role of the Competition Directorate General (DG Comp); the powers of the EU Courts; the significance of fundamental rights and the general principles of EU law in competition cases; the application of competition rules to particular sectors of the economy; and the application of the EU rules to the EEA.

Chapter

Cover Competition Law of the EU and UK

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

Cover Jones & Sufrin's EU Competition Law

2. The Competition Law and Institutions of the European Union  

Alison Jones, Brenda Sufrin, and Niamh Dunne

This chapter sketches the history and functions of the EU and its institutions in order to set the EU competition rules in context. It then describes the competition provisions themselves and outlines the way in which the rules are applied and enforced, including the public enforcement of Articles 101 and 102 under Regulation 1/2003, the control of mergers with a European dimension under Regulation 139/2004, public enforcement by the national competition authorities of the Member States, and the role of private enforcement. It discusses the position and powers of the European Commission, particularly the role of the Competition Directorate General (DG Comp); the powers of the EU Courts; the significance of fundamental rights and the general principles of EU law in competition cases; the application of competition rules to particular sectors of the economy; and the application of the EU rules to the EEA.

Chapter

Cover Competition Law of the EU and UK

5. Procedure: investigation  

This chapter deals with the way in which infringements of Articles 101 and 102 TFEU and Chapter I and II Prohibitions of the Competition Act 1998 are investigated and attacked. The European Commission has its own powers to investigate infringements of EU competition law by virtue of Regulation 1/2003. It may cooperate with national competition authorities (NCAs), who also have their own powers by virtue of EU law and their respective national competition laws. NCAs and the European Commission cooperate through the European Competition Network (ECN). The European Commission and the Competition Markets Authority (CMA) may obtain information, or may investigate on-site. The CMA also has criminal jurisdiction in some cases. Undertakings subject to investigation have rights that must be observed.

Chapter

Cover Competition Law

18. Abuse of dominance (2): pricing practices  

This chapter considers abusive pricing practices under Article 102 TFEU and the Chapter II prohibition in the Competition Act 1998. It first discusses various cost concepts used in determining whether a price is abusive. It then deals in turn with excessive pricing; conditional rebates; bundling; predatory pricing; margin squeeze; price discrimination; and practices that are harmful to the single market. This taxonomy is over-schematic, in that the categories overlap with one another: for example price discrimination may be both exploitative and exclusionary, and an excessively high price may in reality be a way of preventing parallel imports or of excluding a competitor from the market; nevertheless this division may provide helpful insights into the way in which the law is applied in practice. In each section the application of Article 102 by the European Commission and by the EU Courts will be considered first, followed by cases in the UK. Reference will be 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.