This chapter provides an overview of competition policy, 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
1. Competition policy and economics
Chapter
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
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 then examines the purpose, procedure and outcomes of market studies, including the various outcomes that are possible. Market studies sometimes lead to market investigation references, though, as explained later, there are several other possible outcomes of a market study. The chapter describes the making and determination of analyses the market investigation provisions references under Part 4 in 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 work 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.
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
15. Horizontal agreements (3): cooperation agreements
This chapter is concerned with horizontal cooperation agreements which the competition authorities in the EU and the UK may be prepared to countenance. There may be circumstances in which competitors cooperate with one another in a way that delivers economic benefits, not just for themselves, but for consumer welfare as well. After a discussion of joint ventures, the chapter discusses the application of Article 101 to horizontal cooperation agreements. It refers, in particular, to the European Commission’s Guidelines on Horizontal Cooperation Agreements and discusses, in turn, information exchange, research and development agreements, production agreements, purchasing agreements, commercialisation agreements, standardisation agreements, sustainability agreements and other cases of permissible horizontal cooperation. It concludes with a brief look at the treatment of horizontal cooperation agreements under UK competition law.
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.
Chapter
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
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.
