This chapter focuses on block exemption regulations, which have become crucial in the application of the exception contained in Article 101(3) TFEU to agreements whose pro-competitive effects may outweigh any potential threats to competition. The current block exemptions represent an attempt to reconcile economic considerations and the needs of business. They are therefore less prescriptive than earlier versions, and tend to set a benchmark share of the relevant market within which they are applicable. The chapter fleshes out the details of the principal block exemptions presently in force, and provides a step-by-step guide to their application in the shape of a general flow chart. It covers legal basis and withdrawal, block exemptions for vertical agreements, and horizontal block exemptions.
Chapter
10. Block exemption regulations under Article 101 TFEU
Chapter
9. Agreements in the EU: the ELEMENTS of Article 101 TFEU
This chapter considers the general principles of the application of Article 101 TFEU. Article 101 TFEU applies to joint, coordinated conduct understood in a broad sense to catch agreements, decisions by associations of undertakings, and concerted practices. The most important question is that of whether there is in the conduct a prevention, restriction, or distortion of competition within the meaning of Article 101(1) TFEU. Some forms of conduct, such as horizontal price fixing, are generally deemed to be anticompetitive by object; others, such as vertical distribution agreements, must be analysed in order to determine the competitive effects of the conduct. For the prohibition to apply, there must be an effect on trade between Member States. Article 101 TFEU has direct effect, and conduct prohibited is illegal without any decision to that effect being necessary.
Chapter
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
28. Competition Law: Article 101
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. EU competition law covers anti-competitive agreements between firms, abuse of a dominant position, and mergers. Article 101 TFEU is the principal vehicle for the control of anti-competitive agreements. This chapter examines its key features. These include: the meaning given to the terms agreement and concerted practice; the relationship between Article 101(1) and (3); the extent to which economic analysis does and should take place within Article 101(1); and the interpretation accorded to Article 101(3), including whether non-economic factors can be considered. The discussion then shifts to more detailed examination of vertical agreements, followed by an outline of the reform of the enforcement regime for Articles 101 and 102. The UK version contains a further section analysing issues concerning EU competition law and the UK post-Brexit.
Chapter
27. Competition Law: Article 101
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. EU competition law covers anti-competitive agreements between firms, abuse of a dominant position, and mergers. Article 101 TFEU is the principal vehicle for the control of anti-competitive agreements. This chapter examines its key features. These include: the meaning given to the terms agreement and concerted practice; the relationship between Article 101(1) and (3); the extent to which economic analysis does and should take place within Article 101(1); and the interpretation accorded to Article 101(3), including whether non-economic factors can be taken into account. The discussion then shifts to more detailed examination of vertical agreements, followed by an outline of the reform of the enforcement regime for Articles 101 and 102. The UK version contains a further section analysing issues concerning EU competition law and the UK post-Brexit.
Chapter
28. Competition Law: Article 101
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. EU competition law covers anti-competitive agreements between firms, abuse of a dominant position, and mergers. Article 101 TFEU is the principal vehicle for the control of anti-competitive agreements. This chapter examines its key features. These include: the meaning given to the terms agreement and concerted practice; the relationship between Article 101(1) and (3); the extent to which economic analysis does and should take place within Article 101(1); and the interpretation accorded to Article 101(3), including whether non-economic factors can be considered. The discussion then shifts to more detailed examination of vertical agreements, followed by an outline of the reform of the enforcement regime for Articles 101 and 102. The UK version contains a further section analysing issues concerning EU competition law and the UK post-Brexit.
Chapter
27. Competition Law: Article 101
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. EU competition law covers anti-competitive agreements between firms, abuse of a dominant position, and mergers. Article 101 TFEU is the principal vehicle for the control of anti-competitive agreements. This chapter examines its key features. These include: the meaning given to the terms agreement and concerted practice; the relationship between Article 101(1) and (3); the extent to which economic analysis does and should take place within Article 101(1); and the interpretation accorded to Article 101(3), including whether non-economic factors can be taken into account. The discussion then shifts to more detailed examination of vertical agreements, followed by an outline of the reform of the enforcement regime for Articles 101 and 102. The UK version contains a further section analysing issues concerning EU competition law and the UK post-Brexit.
Chapter
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
11. Vertical Agreements
This chapter, which discusses EU competition policy towards vertical agreements, begins by outlining the choices available to a supplier when deciding how best to market and sell its products or services to customers, and the impact that the competition rules may have on a supplier's choice, including the treatment of agency agreements. It then discusses the EU approach to vertical agreements, in the light of the Commission’s Verticals Guidelines of 2010, including exclusive dealing, single branding, franchising andselective distribution agreements, and the review of the 2010 regime. It considers the importance in EU law of parallel trade between Member States and how this has influenced policy towards vertical restraints. It analyses the application of Article 101(1) and Article 101(3) to vertical agreements, including the Verticals block exemption of 2010; sub-contracting agreements; and the possible application of Article 102 to distribution agreements.
Chapter
12. Licensing Agreements and Other Agreements Involving Intellectual Property Rights
This chapter examines some of the different types of intellectual property rights (IPRs) before outlining the relationship between intellectual property and both EU competition law and the EU free movement rules. It focuses, however, on IP licensing agreements and their treatment under Article 101. The chapter traces the development of EU competition policy to IP licensing agreements and examine the current Technology Transfer Block Exemption and the Guidelines in detail. It also examines patent settlement agreements (including pay for delay agreements), patnet pools, trade mark licences, trade mark delimitation agreements, and copyright (other than software) licences not covered by the TTBER and Guidelines.
Chapter
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.
Chapter
9. Horizontal Agreements—Cartels and Collusion
This chapter examines how EU competition law applies both to undertakings operating cartels and to undertakings that tacitly coordinate their behaviour on a market. It starts by looking at the difference between ‘explicit’ and ‘tacit’ collusion in the light of the theory of games and the ‘prisoners’ dilemma’. The chapter then deals with cartels and other agreements akin to cartels, or which may facilitate explicit or tacit collusion on a market. Next, it considers the problem of tacit collusion and whether, in particular, Articles 101 and 102 operate as effective mechanisms for dealing with the oligopoly problem. The chapter also considers other options that EU competition law might offer to deal with tacit collusion, either ex ante or ex post, such as the use of the concept of collective dominance and sector enquiries under Regulation 1/2003, art 17.
Chapter
12. Licensing Agreements and Other Agreements Involving Intellectual Property Rights
Alison Jones, Brenda Sufrin, and Niamh Dunne
This chapter examines some of the different types of intellectual property rights (IPRs) before outlining the relationship between intellectual property and both EU competition law and the EU free movement rules. It focuses, however, on IP licensing agreements and their treatment under Article 101. The chapter traces the development of EU competition policy to IP licensing agreements and examine the current Technology Transfer Block Exemption and the Guidelines in detail. It also examines patent settlement agreements (including pay for delay agreements), patent pools, trademark licences, trademark delimitation agreements, and copyright (other than software) licences not covered by the TTBER and Guidelines.
Chapter
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
9. Horizontal Agreements—Cartels and Collusion
Alison Jones, Brenda Sufrin, and Niamh Dunne
This chapter examines how EU competition law applies both to undertakings operating cartels and to undertakings that tacitly coordinate their behaviour on a market. It starts by looking at the difference between ‘explicit’ and ‘tacit’ collusion. The chapter then deals with cartels and other agreements akin to cartels, or which may facilitate explicit or tacit collusion on a market. Next, it considers the problem of tacit collusion and whether, in particular, Articles 101 and 102 operate as effective mechanisms for dealing with the oligopoly problem. The chapter also considers other options that EU competition law might offer to deal with tacit collusion, either ex ante or ex post, such as the use of the concept of collective dominance and sector inquiries under Regulation 1/2003, Article 17.
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.
Chapter
11. Vertical Agreements
Alison Jones, Brenda Sufrin, and Niamh Dunne
This chapter, which discusses EU competition policy towards vertical agreements, begins by outlining the choices available to a supplier when deciding how best to market and sell its products or services to customers, and the impact that the competition rules may have on a supplier’s choice. It then discusses the evolution of the EU approach to vertical agreements, from the early days of EEC competition to now, especially as reflected in the Commission’s Verticals Guidelines of 2022, including exclusive dealing, single branding, franchising, and selective distribution agreements. It considers the importance in EU law of parallel trade between Member States and how this has influenced policy towards vertical restraints. It analyses the application of Article 101(1) and Article 101(3) to vertical agreements, including the verticals block exemption of 2022; and subcontracting agreements.
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, exchanges of information, distribution agreements, licences of intellectual property rights, unilateral conduct, joint ventures, and mergers. The text has been updated to include changes to EU law on digital markets as a result of the Digital Services Act and the Digital Markets Act. It also discusses the changes to UK law as a consequence of the Digital Markets, Competition and Consumers Act 2024, including the creation of a regulatory scheme for digital platforms having a ‘strategic market status’ and amendments to the Competition Act 1998 and the Enterprise Act 2002. It also discusses the European Commission’s Guidelines on Vertical Restraints of 2022 and Horizontal Cooperation Guidelines of 2023, including its guidance on sustainability agreements. The text incorporates extensive new legislation, case-law, decisional practice, guidelines and periodical literature at EU and UK level.
