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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 Jones & Sufrin's EU Competition Law

14. Private Enforcement  

This chapter focuses on the private civil enforcement of EU antitrust rules through claims made by private litigants in the national courts and tribunals of the individual Member States. The discussions cover the principle of direct effect and national procedural autonomy, mechanisms for cooperation between the Commission and national courts, the obligations of national courts when dealing with cases that raise the issue of whether a contract in violation of Article 101 or Article 102 is enforceable and whether, and if so when, damages and injunctions should be available to remedy such violations. It also considers wy historically there was relatively little antitrust litigation in the EU; the relationship between public and private enforcement; the Commission's policy towards private enforcement, the package of measures the Commission has taken to encourage private litigation, especially the 2014 Damages Directive and its likely impact.

Book

Cover Competition Law of the EU and UK
Competition Law of the EU in the UK provides an introduction to the field of competition law and relates it to the situation of the UK within the EU. It starts by looking at competition law in the EU and UK. It considers international issues and the globalization of competition law. In addition, it looks at procedure in terms of investigation, penalties, leniency, and private enforcement. It considers article 101 TFEU. It also explains the economics of merger control, looking at both the EU and UK merger control regime and the treatment of joint ventures. Finally, it considers state aid, the relationship between competition law and intellectual property and the common law and competition.

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Cover Competition Law of the EU and UK

4. International issues and the globalization of competition law  

This chapter draws a distinction between public, institutional enforcement of competition law, which may raise issues of public international law, and private actions before national courts. The coexistence of competition law regimes around the world means that companies that trade internationally may find themselves subject to the law of a ‘foreign’ state. While in the US the effects doctrine is relied on to assert jurisdiction, in the EU there has been no explicit adoption of the effects doctrine. Instead, the EU relies upon an ‘implementation’ doctrine. Under principles of comity a state may recognize the interests of another state when applying its competition law. Multilateral initiatives have been taken to try to resolve difficulties, but there is at present no single global agreement on competition law.

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

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.

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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 discusses cost concepts used in determining whether a price is abusive and deals with excessive pricing; conditional rebates; bundling; predatory pricing; margin squeeze; price discrimination; and practices harmful to the single market. Price discrimination may be both exploitative and exclusionary and an excessively high price may be a way of preventing parallel imports or excluding a competitor from the market; but the 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 the EU Courts is considered, followed by cases in the UK. Where appropriate, reference is made to the Commission’s Guidance on the Commission’s Enforcement Priorities in Applying Article [102 TFEU] to Abusive Exclusionary Conduct by Dominant Undertakings.

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Cover Competition Law

5. Article 102  

This chapter discusses the main features of Article 102 of the Treaty on the Functioning of the European Union (TFEU), which is concerned with the abusive conduct of dominant firms. It begins by introducing the European Commission’s Guidance on the Commission’s enforcement priorities in applying Article [102 TFEU] to abusive exclusionary conduct by dominant undertakings. It then discusses the concept of undertaking, the requirement of an effect on trade between Member States, the concept of a dominant position and the requirement that any dominant position must be held in a substantial part of the internal market. The chapter also considers the meaning of abuse of a dominant position, which is a complex and controversial issue. A discussion of the defences to allegations of abuse is followed by a brief look at the consequences of infringing Article 102.

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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 the European Commission and the national competition authorities (‘the NCAs’) 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 NCAs. The chapter concludes by providing a brief account of judicial review of the Commission’s decisions.

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Cover Competition Law

8. Articles 101 and 102: private enforcement in the courts of Member States  

This chapter describes the private enforcement of Articles 101 and/or 102 as a matter of EU law, with particular emphasis on the Damages Directive. It also deals with the extensive experience of private actions in the UK courts. The chapter considers the use of competition law as a defence, for example to an action for breach of contract or infringement of an intellectual property right. The chapter concludes with a brief discussion of issues that can arise where competition law disputes are referred to arbitration rather than to a court for resolution.

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Cover Competition Law of the EU and UK

13. The economics of monopoly abuse  

This chapter considers the economics of monopoly abuse. A monopolist is a firm which is the sole supplier in a relevant market. Monopolists are able to determine the market price. This will be higher than the competitive price, with the quantity supplied being lower. This situation leads to a loss of welfare to society as a whole, and also a redistribution of income from some of the monopolist’s customers to the monopolist. The monopolist may also engage in wasteful strategic behaviour to protect its privileged position. In both the EU and UK regimes, competition enforcement is largely complaint driven. This forces the courts, and therefore economists as expert witnesses, to consider the (anti-)competitive impact of short-run activity that might be expected to have little in the way of long-run repercussions.

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Cover Competition Law of the EU and UK

7. Procedure: complaints and third-party rights  

This chapter focuses on the rights of those wishing to take action against an infringement of competition law, potentially with a view to being compensated for the harm they may have suffered. One option is going to the relevant competition authority and filing a complaint to trigger the public enforcement route, saving the cost of litigation. The other option is to seek competition law enforcement in private claims before the courts. Claimants may seek damages or other remedies, including injunctions. In the UK, damages may be sought before the Competition Appeals Tribunal (CAT) and before the national courts. Collective claims can only be brought before the CAT. The number of private actions is increasing, and efforts have been made both by the EU and UK legislators to encourage more private litigation.

Chapter

Cover Jones & Sufrin's EU Competition Law

14. Private Enforcement of Articles 101 and 102  

Alison Jones, Brenda Sufrin, and Niamh Dunne

This chapter focuses on the private civil enforcement of EU antitrust rules through claims made by private litigants in the national courts and tribunals of the individual Member States. The discussion covers the principle of direct effect and national procedural autonomy, mechanisms for cooperation between the Commission and national courts, the obligations of national courts when dealing with cases that raise the issue of whether a contract in violation of Article 101 or Article 102 is enforceable and whether, and if so when, damages and injunctions should be available to remedy such violations. It also considers why historically there was relatively little antitrust litigation in the EU; the relationship between public and private enforcement; and the Commission’s policy towards private enforcement, the package of measures the Commission has taken to encourage private litigation, especially the 2014 Damages Directive and its impact.

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.

Book

Cover Competition Law

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.

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Cover Competition Law

12. The international dimension of competition law  

This chapter explores the international dimension of competition law from two perspectives. It begins by describing the growth of international institutions involved in the development of competition law and policy, with particular reference to the International Competition Network (the ‘ICN’), the Organisation for Economic Cooperation and Development (the ‘OECD’) and the United Nations Conference on Trade and Development (‘UNCTAD’). It then looks at a more technical issue, which is the extent to which a sovereign state (or the European Union) can apply its competition law extraterritorially to conduct beyond its borders that has a harmful effect within it: this will briefly be considered from a theoretical perspective, after which the positions in the US, EU and UK will be examined in turn. The chapter concludes by briefly examining the extent to which a state may wish to block the application of a foreign competition law to its businesses.

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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.

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 to the case-law of the Court of Justice and 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

5. Article 102  

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.