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Chapter

Cover Essential Cases: EU Law

Wightman and others v Secretary of State for Exiting the European Union (Case C-621/18), EU:C:2018:999, 10 December 2018  

Essential Cases: EU Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Wightman and others (Case C-621/18), EU:C:2018:999, 10 December 2018. The document also includes supporting commentary from author Noreen O'Meara.

Chapter

Cover Essential Cases: EU Law

Wightman and others v Secretary of State for Exiting the European Union (Case C-621/18), EU:C:2018:999, 10 December 2018  

Essential Cases: EU Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Wightman and others (Case C-621/18), EU:C:2018:999, 10 December 2018. The document also includes supporting commentary from author Noreen O’Meara.

Chapter

Cover Competition Law

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

Cover Steiner and Woods EU Law

11. Enforcement Actions  

This chapter examines the enforcement rules for European Union (EU) law found in Articles 258, 259 and 114(4) of the Treaty on the functioning of the European Union (TFEU). It outlines the enforcement mechanism by focusing on the various stages of Article 258 TFEU and explains the discretionary powers of the Commission to initiate the proceedings. The chapter also provides the interpretation of the terms ‘reasoned opinion’ and ‘formal notice’ given by the Court of Justice (CJ). It describes the consequences of the failure to comply with the ruling from the CJ and the conditions under which financial penalties may be imposed upon Member States according to Article 260.

Chapter

Cover Steiner & Woods EU Law

11. Enforcement actions  

This chapter examines the enforcement rules for European Union (EU) law found in Articles 258, 259 and 114(4) of the Treaty on the functioning of the European Union (TFEU). It outlines the enforcement mechanism by focusing on the various stages of Article 258 TFEU and explains the discretionary powers of the Commission to initiate the proceedings. The chapter also provides the interpretation of the terms ‘reasoned opinion’ and ‘formal notice’ given by the Court of Justice (CJ). It describes the consequences of the failure to comply with the ruling from the CJ and the conditions under which financial penalties may be imposed upon Member States according to Article 260.

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

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 Jones & Sufrin's EU Competition Law

3. Market Power, Market Definition, and Barriers to Entry  

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 Commission Notice on the definition of the relevant market, 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

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 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 Jones & Sufrin's EU Competition Law

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

Cover Competition Law

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. Section 4 considers the goals of competition law. Section 5 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, while reminding the reader that market shares are only ever a proxy for market power and can never be determinative of market power in themselves.

Chapter

Cover Competition Law

7. Articles 101 and 102: public enforcement by the European Commission and national competition authorities under Regulation 1/2003  

This chapter explains the public enforcement of Articles 101 and 102 by European Commission and the national competition authorities under Regulation 1/2003. It begins by describing the Commission’s powers of investigation and enforcement, including its power to accept commitments, its leniency programme, the cartel settlement procedure, and its power to impose financial penalties. It then discusses the operation of Regulation 1/2003 in practice, with particular reference to the European Competition Network (‘the ECN’) that brings together the Commission and the national competition authorities of the Member States (‘the NCAs’) and the ECN+ Directive that strengthens the powers of the NCAs. The chapter concludes by providing a brief account of judicial review of the Commission’s decisions.

Chapter

Cover Competition Law

21. Mergers (2): EU law  

This chapter examines EU merger control. The chapter is organized as follows. Section 2 provides an overview of EU merger control. Section 3 discusses the jurisdictional rules which determine whether a particular merger should be investigated by the European Commission in Brussels or by the national competition authorities (‘the NCAs’) of the Member States. Section 4 deals with the procedural considerations such as the mandatory pre-notification to the Commission of mergers that have a Union dimension and the timetable within which the Commission must operate. Section 5 discusses the substantive analysis of mergers under the EU Merger Regulation (EUMR), and section 6 explains the procedure whereby the Commission may authorise a merger on the basis of commitments, often referred to as remedies, offered by the parties to address its competition concerns. The subsequent sections describe the Commission’s powers of investigation and enforcement, judicial review of Commission decisions by the EU Courts and cooperation between the Commission and other competition authorities, both within and outside the EU. The chapter concludes with an examination of how the EUMR merger control provisions work in practice.

Chapter

Cover Competition Law

22. Mergers (3): UK  

This chapter discusses UK law on the control of mergers. The chapter is organized as follows. Section 2 provides an overview of the domestic system of merger control. Section 3 explains the procedure of the Competition and Markets Authority (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. Section 4 describes how Phase 2 investigations are conducted and Section 5 discusses the ‘substantially lessening competition’ (‘SLC’) test. Section 6 explains the enforcement powers in the Enterprise Act 2002, including the remedies that the CMA can impose in merger cases. The subsequent sections discuss 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 a brief account of the provisions on public interest cases, other special cases and mergers in the water industry. The withdrawal by the UK from the EU means that many mergers that were subject to a ‘one-stop shop’ under EU law are now subject to investigation in the UK as well.