Jones and Sufrin's EU Competition Law

Name: Jones and Sufrin's EU Competition Law
Price: 4690 ISK
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Author: Niamh Dunne; Alison Jones
ISBN: 9780198987468

Höfundar: Niamh Dunne; Alison Jones (Útgáfa: 9)

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Jones & Sufrin's EU Competition Law: Text, Cases, and Materials provides a complete guide to EU competition law in a single, authoritative volume. An in-depth commentary of EU Competition Law from leading experts in the field is supplemented with carefully selected extracts from key cases and statutory materials to support readers as they approach this highly technical area of law. Now in its ninth edition, this new edition is fully updated with the most recent regulations and guidance, case law of the EU courts, and Commission decisional practice.

With critical insights into developments in the field, the book is uniquely placed to consider on-going policy debates and disputed legal questions. Thorough footnoting and referencing help readers to effectively navigate the available literature, making this an ideal text for competition law scholars engaged in specialized study, undergraduate and postgraduate students, and legal professionals working in competition law.

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Útgefandi: Oxford University Press Academic UK

ISBN: 9780198987468

Print ISBN: 9780198987444

Format: Page Fidelity (PDF)

Útgáfa: 9

Höfundar: Niamh Dunne; Alison Jones

Tungumál: English

Útgefið: 2026-09-29

Prent takmörkun á líftíma: 100

Prent takmörkun: 2

Afritunar takmörkun: 2

Kaflar

Half Title
Title Page
Copyright Page
Preface
Table of Contents
Table of European Cases
Commission Decisions
General Court (Alphabetical Table)
General Court (Numerical Table)
Court of Justice (Alphabetical Table)
Court of Justice (Numerical Table)
European Court of Human Rights
EFTA Court
National Courts of the Member States (Including UK Cases Before 2021)
Denmark
France
Germany
Italy
Netherlands
Spain
Sweden
United Kingdom (Before 2021)
Table of International Cases
International Courts
National Courts of Non-EU States
Australia
United Kingdom (2021 Onwards)
United States
Table of Legislation
European Secondary Legislation
Regulations
Directives
Decisions
Notices Etc.
Opinions
United Kingdom Legislation
Statutes
Statutory Instruments
Foreign Legislation
Australia
Canada
China
Germany
Greece
Ireland
South Africa
United States
Table of European and International Treaties, Conventions, and Charters
Bibliography
Abbreviations
1Introduction to Competition Law
1. Introduction
2. The Economics of Competition Law
A. Basic Concepts
(i) Demand Curves and Consumer and Producer Surplus
(ii) Elasticity of Demand (Own-Price Elasticity)
(iii) Cross-Elasticity of Demand
(iv) Profit Maximisation
(v) Economies of Scale and Scope
(vi) Externalities
B. Perfect Competition and Efficiency
(i) Perfect Competition
(ii) Allocative Efficiency
(iii) Productive Efficiency
(iv) Dynamic Efficiency
C. Monopoly
D. Oligopoly
E. ‘Imperfect’ Or ‘Monopolistic’ Competition
F. The Concept of Welfare: Total (Social) Welfare, Consumer Welfare, and Efficiency
G. Dynamic Competition and Schumpeterian Rivalry
3. Schools of Competition Law Analysis: Harvard, Chicago, and Post-Chicago
A. Introduction
B. The Harvard School
C. The Chicago School
D. The Post-Chicago School
E. Conclusion
4. Other Concepts and Theories in Competition Law Analysis
A. Game Theory
B. Behavioural Economics
C. Raising Rivals’ Costs
D. Transaction Cost Economics
E. Workable Competition
F. Contestable Markets
G. The Austrian School
5. Ordoliberalism
6. The Possible Goals and Values of Competition Law
A. General
B. Economic Efficiency and Welfare
C. Protecting the Competitive Process Or Protecting Competition
D. Protection of Economic Freedom, Protecting Competitors, and the Dispersal of Economic Power
E. The Public Interest, Fairness, Equality (Economic Equity), and Redistribution
F. Public Policies
G. Conclusion
7. US Antitrust Law
8. EU Competition Law
A. The Objectives of the EU and the Role of Its Competition Rules
B. The Objectives of EU Competition Law
(i) General
(ii) The Competition Provisions: Fairness and Consumers
(iii) The Single Market
(iv) The Early Development of Competition Law: Ordoliberal Influences
(v) ‘Modernisation’, the ‘More Economic Approach’, and the Embrace of Consumer Welfare
(vi) Fairness and a Competition Policy ‘Fit for New Challenges’
(vii) Public Policy Considerations and EU Competition Law
9. The Application of EU Competition Law
A. Form, Effects, Presumptions, and Theories of Harm
B. Over- and Under-Enforcement: Type 1 and Type 2 Errors
C. The Use of Economic Analysis
10. EU Competition Law and Regulation
11. The Digital Economy
12. Climate Change and Sustainability
13. Competition Law and the International Context
14. State Aid
Article 107 TFEU
15. Conclusions
2The Competition Law and Institutions of the EU
1. Introduction
2. Introduction to the EU
A. The History of the EU
B. The EU Treaties
C. The Non-Judicial EU Institutions
(i) General
(ii) The European Council
(iii) The Council of the EU
(iv) The European Parliament
(v) The European Commission and Competition Directorate-General
(vi) The Advisory Committee On Restrictive Practices and Dominant Positions and the Advisory Committ
(vii) The European Ombudsman
D. EU Legislative and Other Acts
E. The EU Courts
F. General Principles of EU Law and Fundamental (Human) Rights
3. The Competition Provisions
A. General
(i) Protocol 27 On the Internal Market and Competition
(ii) The Main Treaty Provisions and the Merger Regulation
B. The Substantive Competition Provisions of the TFEU
(i) Article 101 TFEU
(ii) Article 102 TFEU
(iii) Article 106 TFEU
(iv) Article 37 TFEU
C. The Procedural Provisions
(i) Article 103 TFEU
a. Implementing Legislation
b. Block Exemptions
c. Other Regulations and Measures Adopted By the Commission
(ii) Article 104 TFEU
(iii) Article 105 TFEU
D. The European Merger Regulation
E. Other Relevant Treaty Provisions
4. Communications and Notices
5. Regulation 1/2003 and Modernisation
6. Particular Sectors
A. Coal and Steel
B. Atomic Energy
C. Agriculture
D. Transport
E. Other Sectors Subject to Liberalisation
F. Sport
G. Security Connected With Military Equipment
7. The Competition Rules and the European Economic Area
8. Conclusions
3Market Power, Market Definition, and Barriers to Entry
1. Introduction
2. Market Power
3. Market Definition and EU Competition Law
A. The Purpose of Market Definition
B. The Definition of the Relevant Market
C. The Commission Notices On the Definition of the Relevant Market for the Purposes of EU Competitio
(i) The 1997 Notice
(ii) The Revised Notice On the Definition of the Relevant Market
(iii) The General Principles of Market Definition
D. Demand and Supply Substitution
E. Demand Substitution
(i) Measuring Demand Substitution in Product Markets
(ii) The SSNIP Test
(iii) Problems With the SSNIP Test
a. The Cellophane Fallacy
b. Zero-Priced Markets
(iv) The SSNIP Test in the Revised Market Definition Notice
F. Supply Substitution in Product Markets
G. Evidence Used in Defining Markets
(i) General
(ii) Product Markets and Demand Substitution
a. Product Characteristics, Price, Intended Use, and General Customer Preferences
b. Past Substitution
c. Hypothetical Substitution
d. Evidence On Competitive Constraints Based On Industry Views
e. Barriers and Costs From Switching
f. The SSNIP Test
(iii) Product Markets and Supply Substitution
(iv) Gathering Evidence
H. The Geographic Market
(i) General
(ii) Evidence for Defining Geographic Markets
(iii) Categories of Evidence
a. The Identity of Available Suppliers, Market Shares, and Prices
b. Customer Preferences and Purchasing Behaviour
c. Barriers and Costs Associated With Supplying in Different Areas
d. Distance-Related Factors, Transport Costs, and Catchment Areas
e. Trade Flows and Pattern of Shipments
I. Particular Issues in Market Definition
(i) Chains of Substitution and Differentiated Products
(ii) Distinct Groups of Customers and Price Discrimination
(iii) The Structure of Supply and Demand
(iv) Bundles, Aftermarkets, and Ecosystems
a. One Market Or Two?
b. Aftermarkets
c. Digital Ecosystems
(v) Multi-Sided Markets and Zero Prices
(vi) Markets for Raw Materials and ‘Inputs’
(vii) Markets Created By State Regulation
(viii) Markets in the Pharmaceutical Sector
(ix) Markets in Highly Innovative Industries
(x) Markets On the Buying Side (Procurement Markets)
J. The Calculation of Market Share
4. Barriers to Entry and Expansion
A. The Role of Barriers to Entry
(i) The Definition of a Barrier to Entry
B. Types of Barrier to Entry
(i) Sunk Costs
(ii) Structural Barriers
(iii) Strategic Behaviour By Incumbents
5. Conclusions
4Article 101 TFEU: The Elements
1. Introduction
2. The Text and Scheme of Article 101
A. The Three Paragraphs
(i) The Text
(ii) The Article 101(1) Prohibition
(iii) Nullity
(iv) Article 101(3): Legal Exception
B. The Consequences of Infringement
C. Burden and Standard of Proof
3. The Interpretation and Application of Article 101(1)
A. ‘Undertaking’ and ‘Associations of Undertakings’
(i) Every Entity Engaged in an Economic Activity
(ii) The Legal Status Or Form of the Entity Is Immaterial
(iii) Distinguishing Economic Activity From Functions Which Are Not Economic
a. Characterising Economic Activity
b. Exercise of Public Powers in the Public Interest Or Exercise of Official Authority
c. Social Security Schemes, Health Care, and Social Services: Activities Fulfilling an Exclusively S
d. Purchasing of Goods and Services By an Entity Not Engaged in Economic Activity
(iv) The Notion of an Undertaking Is a Relative Concept
(v) Employees and Trade Unions
(vi) Summary
(vii) Single Economic Units
a. The Undertaking as a Single Economic Unit: Natural Persons, Legal Persons, and Principal–Agent
b. Consequences of the Single Economic Unit Doctrine
c. The Boundaries of the Economic Unit: Parent and Subsidiary
d. The Economic Unit: A Single Concept and Proper Basis for Parental Liability?
e. The Boundaries of the Economic Unit On a Dynamic Basis
(viii) Associations of Undertakings
a. Institutionalised Forms of Cooperation
b. The Relationship Between Associations of Undertakings and Undertakings
Case C-73/95 P, Viho Europe BV V Commission EU:C:1996:405
Court of Justice
B. The Meaning of ‘Agreement’, ‘Decision’, and ‘Concerted Practice’
(i) Introduction
(ii) Joint Conduct Orchestrated By Employees
(iii) Agreement
a. A Concurrence of Wills
b. Agreements Between Undertakings Operating at Different Levels of the Economy Or in Separate Marke
c. Collective Bargaining Agreements
d. Participation in Meetings: Passive Participation in an Agreement
e. Vertical Agreements and Unilateral Conduct
f. Invitations to Collude
g. Hub-And-Spoke Arrangements
h. Recommendations By Bodies Constituted Under Statutory Powers
(iv) Concerted Practices
a. Description of a Concerted Practice
b. The Need for Concertation, Conduct (Implementation), and a Relationship of Cause and Effect Betwe
c. Direct Contact: Frequent Or Isolated Exchanges, Or Unilateral Disclosure, of Information
d. Indirect Contact/Sharing of Information and Hub-And-Spoke Arrangements
e. Parallel Behaviour, Price Signalling, and Online Exchanges
f. Concerted Practice and Vertical Arrangements
(v) Decisions By Associations of Undertakings
a. Medium for a Cartel
b. Association Recommendations, Rules, Regulations, and Constitution
c. Medium for Exchange of Information
d. Certification Schemes
(vi) Complex Arrangements and Single Infringements
a. The Concept of a Single Infringement and Its Implications
b. A Single Infringement: Elements
c. A Single Infringement Or Separate Infringements?
d. Who Are the Participants in the Single Infringement?
e. Facilitators and Liability for Independent Service Providers
Cases 56 and 58/64, Établissements Consten SA and Grundig-Verkaufs-GmbH V Commission EU:C:1966:41
Court of Justice
Case C-8/08, T-Mobile Netherlands BV V Raad Van Bestuur Van De Nederlandse Mededingingsautoriteit EU
Court of Justice
Case C-74/14, ‘Eturas’ UAB V Lietuvos Respublikos Konkurencijos Taryba EU:C:2016:42
Court of Justice
Cases C-293 and 294/13 P, Fresh Del Monte V Commission EU:C:2015:416
Court of Justice
C. Object Or Effect of the Prevention, Restriction, Or Distortion of Competition
D. An Appreciable Effect On Competition and Trade
E. An Appreciable Effect On Trade Between Member States
(i) Jurisdictional Limit
(ii) The Tests
(iii) Pattern of Trade Test
(iv) An Increase in Trade
(v) Partitioning of the Internal Market
(vi) Agreements Operating in One Member State
(vii) Restrictions On Competition and Restrictions On Trade
(viii) Agreements That Appreciably Affect Trade Between Member States
(ix) The Relationship Between EU and National Law
(x) Extraterritoriality
F. Agreements Required By National Legislation Or Encouraged By National Governments
G. Commission Notices
4. Article 101(2)
5. Exclusions
6. Conclusions
5Article 101 TFEU: Substantive Appraisal
1. Introduction and Background
A. Article 101(1) and 101(3)
B. Possible Ways of Reconciling Article 101(1) and 101(3)
C. Identifying Restrictions of Competition: The Early Approach
D. Section 1 of the Sherman Act
E. Modernisation
(i) Substantive Analysis and Procedural Steps
(ii) Identifying Prohibited Restrictive Agreements: Clear Rules Or More Complex Standards?
Case T-112/99, Métropole Télévision SA (M6) V Commission EU:T:2001:215
General Court
2. Article 101(1), Agreements That Have as Their Object Or Effect the Prevention, Restriction, Or Di
A. Object Or Effect
B. Agreements That Restrict Competition By Object: Restraints Revealing a Sufficiently Deleterious I
(i) Identifying Restrictions By Object: Content, Objectives, and Context
(ii) Content: Restrictive Clauses in the Agreement (Established Restraints)
(iii) The Importance of the Economic and Legal Context in Identifying the Purpose Or Objective of th
a. A Risk of Over-Expansion of the Object Category
b. Clarification of the Role of Context and the Restrictive Nature of the Object Category
c. Contextual Analysis in the Cases
d. Context, Characterisation, and the US Ancillary Restraints Doctrine
(iv) Object Restraints and Restrictive Effects
(v) Object Cases and Appreciability
(vi) Restrictions By Object and ‘Hardcore’ Restraints
Cases 56 and 58/64, Consten and Grundig EU:C:1966:41
Court of Justice
Case C-67/13 P, CB EU:C:2014:2204
Court of Justice
Case C-67/13 P, CB EU:C:2014:2204
Court of Justice
C. Establishing Restrictive Effects
(i) General
(ii) Appraisal of an Agreement in Its Legal and Economic Context
(iii) Does the Agreement Enable the Parties to Exercise Market Power?
(iv) Restraints On Competition Between a Supplier’s Distributors (Intra-Brand Competition)
(v) Appreciability
Case 56/65, STM EU:C:1966:38
Court of Justice
Case C-234/89, Delimitis V Henninger Bräu EU:C:1991:91
Court of Justice
D. Ancillary Or Objectively Necessary Restraints
(i) Remia and Nutricia
(ii) Pronuptia
(iii) Gøttrup-Klim
(iv) MasterCard
(v) Telefónica
(vi) Booking.com
E. Restraints Inherent in the Pursuit of a Legitimate Objective in the Public Interest: The Wouters
Case C-309/99, Wouters V Algemene Raad Van De Nederlandse Orde Van Advocaten EU:C:2002:98
Court of Justice
Case C-124/21 P, International Skating Union V Commission EU:C:2023:1012
Court of Justice
F. Conclusions and Reflections On Article 101(1) Analysis
3. Article 101(3)
A. Application of Article 101(3)
B. Burden and Standard of Proof
C. Any Agreement May in Principle Benefit From Article 101(3)
D. The Article 101(3) Criteria
(i) Criterion 1: The Agreement Must Lead to an Improvement in the Production Or Distribution of Good
a. Article 101(3) Benefits
b. Efficiency Gains
c. Non-Competition Factors
(ii) Criterion 2: Allowing Consumers a Fair Share of the Resulting Benefit
(iii) Criterion 3: Indispensable Restrictions
(iv) Criterion 4: The Agreement Must Not Afford the Parties the Possibility of Eliminating Competiti
Case T-17/93, Matra Hachette V Commission EU:T:1994:89
General Court
E. Block Exemptions
(i) General
(ii) Current Block Exemptions
(iii) Direct Applicability
(iv) Market Share Thresholds
(v) ‘Hardcore’ Restraints
(vi) Withdrawal of Block Exemptions
(vii) Safe Harbours and Relationship With Article 101(1)
F. Unilateral Action and Article 101(3)
4. Conclusions
6Article 102 TFEU: Introduction and Dominant Position
1. Introduction
2. The Text and Scheme of Article 102
A. The Prohibition
B. The Enforcement of Article 102
(i) Complaints to Competition Authorities
(ii) Infringement Decisions, Fines, and Other Remedies
(iii) Commitments Decisions
(iv) Judicial Review in Article 102 Cases
(v) Private Actions in National Courts and Article 267 References
3. Overview of Article 102
A. The Meaning of One Or More Undertakings
(i) General
(ii) Public Bodies and Bodies Performing Public Functions
(iii) Collective Dominance
B. A Dominant Position
C. A Dominant Position Within a Substantial Part of the Internal Market
(i) Purpose of the Requirement
(ii) Meaning of a Substantial Part of the Internal Market
(iii) Relevance of Volume of Production
(iv) A Member State Is Likely to Be a Substantial Part of the Internal Market
(v) Transport Cases
D. Abuse
E. An Effect On Trade Between Member States
(i) General
(ii) Abuse of a Dominant Position Covering Several Member States
(iii) Abuse of a Dominant Position Covering a Single Member State
(iv) Abuse of a Dominant Position Covering Only Part of a Member State
(v) Abuses Involving Trade With Third Countries
(vi) Regulation 1/2003, Article 3
4. Article 102 and the ‘More Economic Approach’
A. The Review of Article 102
B. The Economic Advisory Group On Competition Policy Report and Staff Discussion Paper
C. The Guidance Paper (And Its Amendments)
D. The Draft Guidelines On Article 102 TFEU
5. The Relationship Between Articles 102 and 101
6. The Concept of Dominance
A. The Definition of a Dominant Position in the Case Law
Court of Justice
Court of Justice
B. Effects-Based Analysis and the Concept of Dominance
C. Establishing Dominance: A Two-Stage Approach
7. Market Definition in Article 102 Cases
A. General
(i) Demand Substitutability
(ii) The United Brands Case
(iii) The Michelin Case
(iv) The France Télécom Case
(v) Market Definition in Multi-Sided Markets: The Google Shopping Case
(vi) Demand Substitution in Zero-Priced Markets
(vii) Chains of Substitution and Products With Multiple Applications
(viii) The Structure of Supply and Demand
(ix) One Product Market Or Two
(x) Primary and Secondary Markets (Aftermarkets)
(xi) Ecosystems
(xii) ‘Attention’ Markets
(xiii) Markets for Raw Materials and Inputs
(xiv) Markets On the Buying Side (Procurement Markets)
(xv) Supply Substitution
Court of Justice
B. The Geographic Market
C. The Temporal Market
8. Assessing Market Power
A. General
B. Market Share
(i) General
(ii) The Calculation of Market Share
(iii) High Market Share
(iv) Relative Market Share
(v) Low Market Share and Dominance
(vi) Market Share in the Digital Economy
(vii) Market Share in the Case of Collective Dominance
Court of Justice
C. Other Factors Indicating Dominance and Barriers to Entry
(i) General
(ii) Indications From the Undertaking
a. The Undertaking’s Own Assessment of Its Position
b. Profit Margins
c. Performance Indicators and Price Levels
d. Overall Size and Strength and Range of Products (Portfolio Power)
(iii) Barriers to Entry and Expansion
(iv) Summary of Barriers to Entry for the Purposes of Article 102
a. Economies of Scale and Scope and Sunk Costs
b. Access to Key Inputs Or Facilities
c. Access to Financial Resources and the Need for Investment
d. Legal and Regulatory Barriers and IPRs
e. Superior Technology
f. Established Distribution and Sales Networks
g. Vertical Integration
h. Advertising, Reputation, and Product Differentiation
i. Opportunity Costs
j. Switching Costs
k. Customer Inertia
l. Network Effects and Multi-Sided Market
m. Conduct
n. An Unavoidable Trading Partner
D. Countervailing Buyer Power
9. Collective Dominance
10. Conclusions
7Article 102 TFEU: Conduct Which Can Be an Abuse
1. Introduction
2. The Meaning of Abuse
A. General
B. Types of Abuse Covered By Article 102 TFEU
(i) Categories of Abuse
C. Article 102 Covers Exploitative and Exclusionary Abuses
(i) The Continental Can Case
(ii) Application of Article 102 After Continental Can
Court of Justice
D. The Broad Nature of the Concept of Abuse
(i) The Definition of ‘Abuse’
(ii) Market Power Does Not Need to Be Used for an Abuse to Be Committed
(iii) Abuse as an Objective Concept
(iv) The ‘Special Responsibility’ of Dominant Undertakings
(v) ‘Super-Dominance’
Court of Justice
Court of Justice
Court of Justice
E. Exclusionary Abuses: Distinguishing Abusive Conducts From ‘Competition On the Merits’
Court of Justice
F. Exclusionary Abuses: Form- Versus Effects-Based Analysis
Court of Justice
Court of Justice (Grand Chamber)
G. Appreciability
3. The Commission’s Evolving Approach to Exclusionary Abuses: From the Guidance Paper to the Draft
A. Exclusionary Abuse in the Guidance Paper: The ‘Anticompetitive Foreclosure’ Standard
B. Exclusionary Abuse Under the Draft Guidelines: ‘Competition Not On the Merits’ and ‘Capacit
4. Objective Justification, Efficiencies, and Other Defences
A. General
B. Objective Justification in Post Danmark I
Court of Justice
C. Objective Necessity
D. Efficiencies
General Court
5. Dominance and Abuse On Different Markets: ‘Leveraging’ of Market Power as a Theory of Harm
General Court
6. General Issues in Respect of Abuses Concerning Prices
A. Exploitative and Exclusionary Pricing Policies
B. Price Discrimination
(i) What Is Price Discrimination?
(ii) Primary Line and Secondary Line Injury
C. Cost Levels
D. The AEC Test
General Court
7. Predatory Pricing
A. General
B. The Areeda–Turner Test
C. The Test Laid Down in AKZO
(i) The AKZO Case
(ii) The Criteria Laid Down in AKZO
a. Problems With Costs-Based Tests
b. Rational Reasons for Below AVC Pricing
c. Ascertaining Intention Between AVC and ATC
d. Selective Below-Cost Pricing
Court of Justice
D. The Post Danmark I Case
Court of Justice
E. The ‘Meeting Competition’ Defence and Predatory Pricing
F. Recoupment
(i) The Possibility of Recoupment
(ii) The EU Case Law
Court of Justice
G. Predatory Pricing in the Guidance Paper and the Draft Guidelines
H. Predatory Pricing in High-Tech and Digital Markets
I. Selective Above-Cost Pricing
Court of Justice
8. Margin Squeeze
A. General
B. The Case Law
(i) Deutsche Telekom
(ii) TeliaSonera
(iii) Margin Squeeze in Practice: Telecommunications and Beyond
Court of Justice
Court of Justice
Court of Justice
C. Margin Squeeze in the Guidance Paper and the Draft Guidelines
D. Comment
9. Exclusive Dealing
A. General
B. Exclusive Dealing: An Abuse ‘By Object’ Or ‘By Effect’?
(i) Hoffmann-La Roche: The Abusive Nature of Exclusive Dealing
(ii) Intel: Revisiting the ‘By Object’ Condemnation of Exclusivity Practices
(iii) Post-Intel: Where Do We Stand On Assessment of Exclusive Dealing?
a. Scope of Application of the Intel Judgment to Exclusivity Practices
b. Relevance of the Hoffmann-La Roche Presumption Post-Intel
c. The Concept of ‘Capacity to Foreclosure’
d. The AEC Test
e. Establishing Capacity to Foreclosure in Practice
Court of Justice
Court of Justice
Court of Justice
Court of Justice
C. Categories of Exclusivity Practices
(i) Exclusive Purchasing
(ii) Exclusive Distribution
(iii) Exclusivity and Loyalty(-Inducing) Rebates
(iv) Exclusivity Payments
(v) ‘Naked Restrictions’
General Court
D. Exclusive Dealing and Conditional Rebates in the Guidance Paper and the Draft Guidelines
10. Tying and Bundling
A. General
B. The Commercial Rationale for Tying and Bundling
C. The Economic Arguments Over Tying and Bundling
D. Tying and Bundling and Article 102
E. The Case Law
(i) Contractual Or ‘Classical’ Tying
(ii) Mixed Bundling
(iii) Technical Tying and the Microsoft Case
(iv) The Google Android Case
a. Tying of Google’s Proprietary Apps
b. ‘Anti-Fragmentation’ Licensing Obligations
c. Discussion of the Android Case
(v) Technical Tying After Google Android
Commission
Commission
General Court
F. Tying and Bundling in the Guidance Paper and the Draft Guidelines
11. Refusal to Supply
A. General
B. The Exclusion of Competitors From Downstream Markets
(i) The Commercial Solvents Case
(ii) The ‘Essential Facilities’ Concept in EU Law
Court of Justice
C. The Rise and Fall of the Bronner Criteria
(i) What Constitutes a ‘Refusal’ to Supply?
(ii) Indispensability
(iii) Refusal to Supply and the ‘Telefónica Exceptions’
(iv) Refusal to Supply Access to Infrastructure Developed for Third-Party Use
(v) Ownership (Or Equivalent Degree of Control) Over Essential Infrastructure
(vi) Elimination of Competition
(vii) Absence of Objective Justification
Opinion of Advocate General Jacobs
Court of Justice
Court of Justice
Court of Justice
D. Refusal to Supply and Intellectual Property Rights
(i) General
(ii) The Magill Case
(iii) The IMS Case
Court of Justice
E. Refusal to Supply and Interoperability: The Microsoft Case
F. Refusal to Supply Access to Digital Technology and Data
G. Refusal to Supply in Situations Not Involving Upstream/Downstream Markets
H. Refusal to Supply in the Guidance Paper and the Draft Guidelines
12. Self-Preferencing
A. General
B. The Google Shopping Case
(i) Self-Preferencing as an ‘Independent Form of Leveraging Abuse’
(ii) Self-Preferencing and the Applicability of the Bronner Criteria
(iii) Self-Preferencing as an Effects-Based Theory of Harm
(iv) Self-Preferencing and Objective Justification
Court of Justice
Court of Justice
C. Self-Preferencing After Google Shopping
D. Self-Preferencing in the Draft Guidelines
E. Comment
13. Other Exclusionary Practices
A. General
B. Pursuit of Legal Proceedings, Vexatious Litigation, and Enforcing Legal Rights
C. ‘Regulatory Gaming’
(i) The AstraZeneca Case
a. Misrepresentations to National Patent Offices and National Courts
b. Withdrawal of the Marketing Authorisations
(ii) Teva and ‘Divisionals Games’
(iii) Pay-To-Delay as Abuse of Dominance
(iv) Standard-Essential Patents and Patent Ambushes
Court of Justice
D. The Acquisition of IPRs And/or Competing Technologies
E. ‘Most Favoured Nation’ Clauses
F. Vertical and Horizontal Integration
G. Disparagement of Rivals
H. ‘Conflict of Interests’
14. Secondary Line Discrimination
A. Introduction to Article 102(c)
B. Exclusionary Practices Under Article 102(c)
C. Discrimination On Grounds of Nationality Or Geographic Location
Court of Justice
D. Secondary Line Discrimination and ‘Competitive Disadvantage’
Court of Justice
15. Exploitative Abuses
A. Unfairly High Or Low Pricing
(i) Unfairly High Prices
a. General
b. Ascertaining What Constitutes an Unfairly High Price: The Concept of ‘Economic Value’
c. The Future of the Excessive Pricing Under Article 102
(ii) Low Prices On the Buying Side
Court of Justice
B. Imposing Unfair Trading Conditions
European Commission
C. Inefficiency and Limiting Production
16. Conduct Hindering Inter-Member State Trade
Court of Justice
17. Abuse and Collective Dominance
18. Conclusions
8Competition and the State: Article 106 TFEU
1. Introduction
2. Article 4(3) TEU
3. Article 106
Article 106
A. The Objectives of Article 106
B. The Format of Article 106
(i) Article 106(1): Prohibition Addressed to Member States
(ii) Article 106(2): Provision Addressed to Undertakings Providing for Limited Immunity From the Tre
(iii) Article 106(3): Policing and Legislative Powers of the Commission
4. Article 106(1)
A. Definitions
(i) ‘Public Undertakings’
(ii) Undertakings Granted Special Or Exclusive Rights
(iii) ‘Measures’
B. Measures Forbidden By Article 106(1)
(i) Introduction
(ii) Situations That Infringe Article 106(1) in Conjunction With Article 102
a. Inability to Meet Demand
b. The Cumulation of Rights Conferred On an Undertaking Creating a Conflict of Interest
c. The Extension of the Dominant Position
d. Inequality of Opportunity and Distortion of Competition
e. Pricing Abuses
f. Refusal to Supply
g. ‘Automatic’ Abuse
Court of Justice
Court of Justice
5. Article 106(2)
A. The Purpose of Article 106(2)
B. Undertakings Having the Character of a Revenue-Producing Monopoly
C. Operation of SGEIs
(i) Article 14 TFEU
(ii) Protocol (No. 26) On Services of General Interest
a. Protocol 29 On Public Broadcasting
(iii) Article 36 of the Charter of Fundamental Rights
Article 1
Article 2
D. Undertakings Entrusted With the Operation of SGEIs
(i) ‘Undertakings Entrusted With . . . ’
(ii) Operation of SGEIs
(iii) Obstructing the Performance of the Particular Tasks Assigned to Them
General Court
Court of Justice
E. No Effect On Trade Contrary to the Interests of the Union
6. SGEIs and State Aid
7. The Direct Effect of Article 106(1) and (2)
A. Article 106(1)
B. Article 106(2)
8. Article 106(3)
A. The Ambit of the Provision
B. Decisions
C. Directives
9. Conclusions
9Horizontal Agreements: Cartels and Collusion
1. Introduction
A. General
B. Cartels and Collusion: Explicit and Tacit
(i) Cartels: Explicit Collusion
a. Introduction
b. The Incentives for and Complications Involved in the Operation of a Cartel
c. Alignment, Detection, and Punishment of Deviation: Markets Prone to Explicit Collusion
d. The Desire to Combat and Eliminate Cartels
(ii) Tacit Collusion and the Oligopoly Problem
C. Competition Law and Collusion (Explicit and Tacit)
2. Cartels
A. Cartels Are Intrinsically Detrimental to the Competitive Process and Not Related to the Lawful Re
B. Price-Fixing
C. Buyer Cartels, Wage-Fixing, and No-Poach Agreements
D. Restrictions On Output Or Production
E. Market-Sharing
F. Collusive Tendering Or Bid-Rigging
G. Other Provisions and Restrictions On Non-Price Trading Conditions Or On Non-Price Parameters of C
3. Is It a Cartel?
A. Horizontal Agreements Incorporating Severe Restraints Ancillary, Or Necessary, to Beneficial Coll
(i) General
(ii) Price Restraints
(iii) Joint Purchasing (Price-Fixing Among Buyers)
(iv) Output and Production Limitations
(v) Joint Tendering
(vi) Market-Sharing and Settlement Agreements
(vii) Restrictions On Advertising
B. Information-Sharing Agreements
(i) Exchange of Information Between Competitors
(ii) Assessing the Competitive Effects of an Information-Sharing Arrangement Under Article 101(1) an
a. Characterisation
b. Object Restrictions
c. Analysing Other Information Exchanges
d. Business-To-Business Exchanges
C. Establishing an Agreement, Decision, Or Concerted Practice
(i) Proving a Breach
(ii) Parallel Conduct, Conscious Parallelism, and Collusion
(iii) Public Announcements
(iv) Collusion, Algorithms, and Online Practices
(v) Uncovering Collusion
4. Oligopoly and the Problem of Tacit Collusion
A. The Oligopoly Problem and Article 101
B. Oligopoly and Article 102
(i) ‘One Or More Undertakings’: Collective Dominance
(ii) Abuse of a Collective Dominant Position
a. Overlap With Article 101?
b. Collective Abuses
c. Abuse By One of the Collectively Dominant Undertakings
(iii) Conclusions
C. Alternative Methods for Dealing With Oligopolistic Markets Under EU Law
(i) Merger Regulation
(ii) Sector Inquiries and Broader Solutions
5. Conclusions
10Horizontal Cooperation Agreements
1. Introduction
2. Appraisal of Horizontal Cooperation and JVs: Evolution of Policy
A. Appraisal Under the EUMR Or Article 101?
B. The Evolving EU Approach to Horizontal Cooperation
(i) General
(ii) The Development of a More Economic Approach Towards the Application of Article 101 to Horizonta
(iii) The Horizontal Cooperation Guidelines
3. R&D Agreements
A. The Application of Article 101(1)
B. The Application of Article 101(3)
(i) The R&D Block Exemption
(ii) The Individual Application of Article 101(3)
4. Production Agreements
A. The Application of Article 101(1)
B. The Application of Article 101(3)
(i) The Block Exemption for Specialisation Agreements
(ii) The Individual Application of Article 101(3)
5. Purchasing Agreements
A. Analysis of Joint Purchasing Under Article 101
Example 3
Example 5
B. Cases On Joint Purchasing
6. Commercialisation Agreements
Example 1
Example 4
Example 6
7. Standardisation Agreements and Standard-Setting
8. Standard Terms
9. Sustainability Agreements
Example 5
10. Conclusions
11Vertical Agreements
1. Introduction
A. General
B. Methods of Distribution
(i) Factors Affecting Choice
(ii) Vertical Integration
(iii) Agency and Other Intermediaries
(iv) Distribution Through Independent Distributors
(v) Distribution and E-Commerce
C. Competition Rules and Distribution
(i) The Impact of the Competition Rules On Methods of Distribution
(ii) Intra-Undertaking Arrangements: Vertical Integration and Agency Agreements
a. Parent–Subsidiary Arrangements
b. Agency Agreements
c. Agency and Online Platforms
(iii) Vertical Agreements
a. Restraints On Conduct and Restrictions of Competition: The Problem
b. The Positive Effects of Vertical Restraints
c. Potential Anti-Competitive Effects of Vertical Restraints
2. The EU Approach to Vertical Agreements: An Overview
A. Background: The Early Approach
B. The Approach Since 1999: The Block Exemption and Reform
C. Methodology
3. Vertical Agreements and Article 101(1)
A. Restrictions By Object
(i) Identifying Object Restraints
(ii) RPM, ATP, Export, and Online Sales Bans
a. RPM
b. Restrictions On Parallel Trade
c. Development in the Cases
(iii) Other Object Restraints and Selective Distribution
B. Analysing the Restrictive ‘Effect’ of Vertical Agreements
(i) Introduction
(ii) Single Branding Agreements and Delimitis
(iii) Exclusive Distribution Agreements and STM
(iv) Franchising Agreements and Pronuptia De Paris
(v) Online Sales and Online Advertising Restrictions
(vi) Parity Obligations
(vii) Tying
(viii) Other Restraints
(ix) Effects Analysis: The Need to Develop a Clearer Framework?
C. Selective Distribution Agreements
(i) The Metro Criteria
(ii) The Characteristics Or the Nature of the Product
(iii) Qualitative Not Quantitative Criteria Applied Uniformly and in a Non-Discriminatory Manner
(iv) The Criteria Must Not Go Beyond What Is Necessary for the Product in Question
(v) Object Or Effect Analysis?
Case C-439/09, Pierre Fabre V Président De L’Autorité De La Concurrence EU:C:2011:649
4. Article 101(3)
A. General
B. The Block Exemptions
C. The VBER: Regulation 2022/720
(i) Overview
(ii) Article 1: Definitions
(iii) Article 2: The Main Exemption: Scope and Limitations
a. An Umbrella Exemption Applying to Vertical Agreements
b. Vertical Agreements in the Online Platform Economy
c. Association of Retailers of Goods
d. Provisions Relating to the Assignment of IPRs
e. Agreements Between Competing Undertakings
f. Agreements Falling Within the Scope of Another Block Exemption
(iv) Article 3: The Market Share Cap
(v) Article 4: Hardcore Restrictions
a. The VBER Is Not Applicable to Agreements Containing Hardcore Restraints
b. Article 4(a): Resale Price Maintenance
c. Article 4(b)–(d): Territorial and Customer Restraints
d. Article 4(e): Online Restraints
e. Article 4(f): Restrictions On Sales of Spare Parts
(vi) Article 5: Excluded Restraints—Severable, Non-Exempted Obligations
a. Obligations That Are Excluded (Not Exempted) But That May Be Severable
b. Article 5(1)(a): Non-Compete Obligations
c. Article 5(1)(b): Non-Compete Obligations After the Termination of the Agreement
d. Article 5(1)(c): Non-Compete Obligations and Selective Distribution Systems
e. Article 5(1)(d): Across-Platform Retail Parity Obligations
(vii) Article 6: Withdrawal of the Block Exemption
(viii) Article 7: Non-Application of the Regulation
(ix) Articles 8, 9, and 10: Market Share, Turnover, and Transitional Provisions
(x) Article 11: Commencement, Expiry, and Review
D. The Motor Vehicle Distribution Block Exemption
E. Article 101(3): Individual Assessment
(i) Introduction
(ii) ‘Hardcore’ Restraints
(iii) Other Restraints
5. Subcontracting Agreements
6. Article 102 and Distribution
7. Conclusions
12Licensing Agreements and Other Agreements Involving Intellectual Property Rights
1. Introduction
A. General
B. Types of IPR
(i) The Nature of IPRs
(ii) Patents
(iii) Trademarks
(iv) Copyright
(v) Databases
(vi) Designs
(vii) Know-How
C. The Relationship Between IPRs and Competition Law
D. The Relationship Between IPRs and the Free Movement Rules
2. Exploiting IPRs By Licensing
A. General
B. Commercial Considerations in Licences
(i) General
(ii) Royalties
(iii) Territorial Restrictions On Production: Exclusive and Sole Licences
(iv) Territorial Sales Restrictions and Customer Allocation
(v) Field of Use Restrictions
(vi) Tying and Bundling
(vii) Non-Compete Obligations
(viii) Non-Challenge Clauses
(ix) Improvements
C. Development of Competition Policy Towards Licensing of IP
(i) The Evolution of the Commission’s Policy Towards Licensing Agreements
(ii) The Case Law of the Court
(iii) Block Exemptions: Evolution
Case 27/87, Erauw-Jacquéry V La Hesbignonne EU:C:1988:183
Court of Justice
Cases C-403 and 429/08, Murphy EU:C:2011:631
Court of Justice
D. The 2026 TTBER and Technology Transfer Guidelines
(i) Methodology
(ii) General Principles: Application of Article 101 to IPRs
3. Regulation 2026/877: The Technology Transfer Block Exemption
A. The Scheme of the TTBER
B. Principal Features of the TTBER
C. The Scope of the TTBER
(i) Agreements to Which the TTBER May Apply
a. Article 2 TTBER
b. The Bilateral Technology Transfer Agreement
c. The Agreement Must Concern the Production of Contract Products
d. Agreements Not Covered By the TTBER
(ii) Relationship With Other Block Exemptions
D. Safe Harbour: The Market Share Thresholds
(i) The Market Share Thresholds
(ii) Market Definition
a. The Technology Market
b. The Product Market
(iii) Market Shares
a. Means of Calculation
b. The Technology Market
c. The Product Market
(iv) The Distinction Between Competitors and Non-Competitors
(v) Non-Competitors Who Subsequently Become Competitors
E. Hardcore Restrictions
(i) General
(ii) Agreements Between Competing Undertakings
a. Article 4(1)(a): Price Restrictions
b. Article 4(1)(b): Output Limitations
c. Article 4(1)(c): Market Or Customer Allocation
d. Article 4(1)(d): Limitations On Technology Exploitation Or R&D
(iii) Agreements Between Non-Competing Undertakings
a. Article 4(2)(a): Price Restrictions
b. Article 4(2)(b): Passive Sales Restrictions Imposed On the Licensee
c. Article 4(2)(c): Active Or Passive Sales Bans to End Users Within Selective Distribution Systems
F. Excluded Restrictions
(i) Introduction
(ii) Article 5(1)(a): Improvements; Exclusive Grant Backs
(iii) Article 5(1)(b): Non-Challenge and Termination Clauses
(iv) Limitations On Technology Exploitation Or R&D
G. Withdrawal and Disapplication of the Block Exemption
(i) Withdrawal
(ii) Disapplication
4. The Application of Article 101 to Agreements Involving IPRs Falling Outside the TTBER
A. General Principles
(i) Technology Transfer Agreements Outside the TTBER
(ii) No Presumption of Illegality
(iii) The Second Safe Harbour
(iv) The Approach to the Analysis of Individual Agreements
B. Application of Article 101(1) to Various Types of Licensing Restraints
C. Settlement Agreements
Case C-591/16 P, H Lundbeck A/S V Commission EU:C:2021:243
Court of Justice
D. Technology Pools
E. Licensing Negotiation Groups
F. Agreement Between a Licensor and Licensee Concerning the Dissemination of Information Relating to
5. Trademark Licences
A. General
B. The Campari and Moosehead/Whitbread Decisions
C. The Current Position
6. Trademark Delimitation Agreements
7. Copyright (Other Than Software) Licences
A. General
B. Broadcasting Licences and Performance Copyright
C. Collective Licensing of Copyright
8. The Application of Article 102 to IPRs
9. Conclusions
13Public Enforcement of Articles 101 and 102 By the Commission and the National Competition Authorit
1. Introduction
2. Modernisation and Enforcement Under Regulation 1/2003
3. The Commission’s Power to Issue Informal Guidance
4. Fundamental Human Rights and Competition Enforcement
Article 7 Respect for Private and Family Life
Article 20 Equality Before the Law
Article 41 Right to Good Administration
Article 47 Right to an Effective Remedy and to a Fair Trial
Article 48 Presumption of Innocence and Right of Defence
Article 50 Right Not to Be Tried Or Punished Twice in Criminal Proceedings for the Same Criminal Off
5. Enforcement By the Commission
A. Introduction
B. Complaints
(i) Standing to Submit a Formal Complaint
(ii) The Complaints Procedure
(iii) Rejection of a Complaint
(iv) Acting On a Complaint
(v) Judicial Review Proceedings
(vi) Reform of the Complaints Procedure
C. The Investigation Stage of the Administrative Procedure: Fact-Finding By the Commission
(i) General
(ii) Article 18 Requests for Information
(iii) Article 20 Inspections of Undertakings
a. General
b. The Powers of the Inspectors
c. Legal Advice
(iv) Inspections On Private Premises Under Article 21
(v) The Power to Take Statements
(vi) The Privilege Against Self-Incrimination
(vii) Legal Professional Privilege
a. The Extent of Legal Professional Privilege
b. Procedure in Claims of LPP
Court of Justice
Opinion of Advocate General Kokott
Court of Justice
D. The Second (‘Inter Partes’ Or ‘Adversarial’) Stage of the Procedure
(i) General: The Rights of the Defence and the Right to Be Heard
(ii) State-Of-Play and Other Meetings
(iii) The SO
(iv) The Hearing Officer
(v) Access to the File
a. General
b. Confidentiality
c. Confidentiality and Complainants
d. The Transparency Regulation
(vi) The Oral Hearing
E. Enforcement Decisions Under Regulation 1/2003
(i) General
(ii) Final Decisions: Infringement Decisions Under Regulation 1/2003, Article 7
(iii) Final Decisions: Commitments Decisions Under Regulation 1/2003, Article 9
a. General
b. The Use of Article 9 Decisions
c. Proportionality and Article 9 Decisions
d. The Advantages and Disadvantages of Commitments Decisions
(iv) Final Decisions: ‘Consent Decrees’ Under Article 7?
(v) Final Decisions: Findings of Inapplicability
(vi) Procedural Decisions
(vii) Interim Measures
Finding and Termination of Infringement
Article 9
Court of Justice
Article 10
Article 8
F. The Settlement Procedure in Cartel Cases
(i) Hybrid Settlements
(ii) Appeal Against Decisions Taken Under the Cartel Settlement Procedure
Court of Justice
G. Informal Settlements
H. Fines and Periodic Penalty Payments
(i) General
(ii) Fines for Procedural Infringements
(iii) Periodic Penalty Payments
(iv) Fines for Substantive Infringements
a. Regulation 1/2003, Article 23(2)
b. The Position of Trade Associations
c. Intentional Or Negligent Infringement
d. Novelty and Non-Imposition of Fines
e. Development of the Commission’s Fining Policy
f. The Adoption of the Commission’s 1998 Guidelines On the Method of Setting Fines
g. The 2006 Guidelines On the Method of Setting Fines
h. Particular Issues in the Application of the Fining Guidelines
i. General Principles of Law
j. Liability for Fines
k. The Payment and Collection of Fines
(v) The Leniency Policy in Cartel Cases
a. General
b. Immunity
c. Reductions in the Fine
d. Corporate Statements and Civil Litigation
e. The Future of the Leniency Programme: Prospects and Alternatives?
Court of Justice
Article 4a The Commission’s Leniency Programme
I. Sector Inquiries
6. Proceedings Before the Court of Justice of the European Union
A. Judicial Review
(i) General
(ii) Article 263 TFEU
(iii) Locus Standi: Who Can Bring an Action?
(iv) Which Acts Can Be Challenged?
(v) The Grounds of Review
a. General
b. Lack of Competence
c. Infringement of an Essential Procedural Requirement
d. Infringement of the Treaties Or Any Rule of Law Relating to Their Application
(vi) Appeals Against Penalties: Article 261 TFEU
(vii) Burden of Proof, Standard of Proof, and Standard of Review
(viii) Annulment
(ix) Appeals From the GC to the CJ
(x) Interim Measures By the Court Under Article 278 TFEU
General Court
Court of Justice
B. Actions for Damages Under Article 340 TFEU
7. Enforcement By the NCAs Within the ECN
A. General
B. Enforcement Powers of the NCAs
Article 5 Powers of the Competition Authorities of the Member States
C. Division of Work
(i) Case Allocation: Which Authority Is Well Placed to Deal With a Case?
(ii) Transfer of Information and Other Assistance
(iii) Leniency Applications
D. Consistent Application of Articles 101 and 102
(i) General
(ii) The Mechanism of Cooperation
8. The Relationship Between EU and National Competition Law
Article 3 Relationship Between Articles [101] and [102] of the Treaty and National Competition Laws
9. Ne Bis in Idem (Double Jeopardy)
Court of Justice
Justification for a Possible Limitation of the Fundamental Right Guaranteed By Article 50 of the Cha
10. Criminalisation and Sanctions Against Individuals
11. Conclusions
14Private Enforcement of Articles 101 and 102
1. Introduction
2. The Role of Private Antitrust Litigation, Its Relationship With Public Enforcement, and the Exper
3. Private Enforcement in the EU
A. Overview: Effective Judicial Protection and the Principle of National Procedural Autonomy
B. Uniform and Concurrent Application of Articles 101 and 102
(i) Cooperation Between the Commission and National Courts
(ii) Judgments Contrary to Decisions of the Commission
C. The Enforceability of Agreements Infringing Articles 101 Or 102
D. Remedies: Injunctions and Damages
(i) An EU Right to an Injunction
(ii) The Development of an EU Right to Damages
Case C-453/99, Courage Ltd V Crehan EU:C:2001:465
Court of Justice
(iii) The Principle of National Procedural Autonomy: The Difficulties
(iv) A Need for Clarification and Harmonisation: The EU Package and Damages Directive
(v) The Provisions of the Damages Directive
a. The Core Objectives: Full Compensation for All Victims of Antitrust Infringements, Levelling the
b. The Compensatory Approach
c. Disclosure
d. Follow-On Actions, Limitation, and Joint and Several Liability
e. Consensual Dispute Resolution
f. Concerns About the Impact of the Directive
(vi) Litigation Post-Directive
4. Conclusions
15Mergers
1. Introduction
A. General
B. What Is a Merger?
C. The Purposes of Merger Control in Competition Law Regimes
(i) A Damaging Effect On Competition
a. Horizontal Mergers
b. Vertical Mergers
c. Conglomerate Mergers
d. Efficiency
e. Failing Undertakings
(ii) Evolving Policy Towards Mergers
(iii) Public Interest Or Broader Policy Concerns
a. Fear of Big Business
b. National Or European Champions
c. Special Sectors and Foreign Control
d. Unemployment
e. Data
f. Sustainability
D. The History of the European Merger Control Regulation
(i) The Initial Lacuna and the Drive for Merger Control at the EU Level
(ii) The Catalysts for the EUMR
(iii) The Original Merger Control Regulation: Council Regulation (EEC) 4064/89
(iv) The Current Merger Control Regulation: Council Regulation (EC) 139/2004
(v) Subsequent Review
E. Scheme of the European Union Merger Regulations
2. Jurisdiction
A. Concentrations
(i) Definition
a. Article 3(1)(a): Mergers Between Previously Independent Undertakings
b. Article 3(1)(b): Acquisition of Control
(ii) JVs
a. Introduction
b. ‘Full-Function’ JVs
(iii) Article 3(5) and Warehousing Arrangements
(iv) Abandonment of a Concentration
B. EU Dimension
(i) A Bright-Line Jurisdictional Test and Simplified Procedure
(ii) Article 1(2)
(iii) Article 1(3) of the EUMR
(iv) Concentrations, Undertakings Concerned, and Calculation of Worldwide and Community-Wide Turnove
a. Examples
(v) Rethinking the Thresholds
C. Concentrations With an EU Dimension: A One-Stop Shop?
(i) Exclusive Competence of the Commission Under the EUMR
(ii) Case Referrals
(iii) Article 9: Distinct Markets
a. Objective of Article 9
b. The Article 9 Procedure
c. A Reference Back
d. Examples of Article 9 Decisions
(iv) Article 4(4) Request for Referral to an NCA
(v) Article 21(4): Legitimate Interests
D. Concentrations Without an EU Dimension
(i) National Law Applies
(ii) JVs
(iii) Article 22, Referrals to the Commission
a. Background
b. The Article 22 Procedure
(iv) Article 4(5): Request for a Referral to the Commission
E. A Residual Role for Articles 101 and 102 of the Treaty
3. Procedure
A. Notification
B. Reasoned Submissions
(i) Background
(ii) Article 4(4): Request for Referral to an NCA
(iii) Article 4(5): Request for a Referral to the Commission
C. Suspension
D. Phase I Investigation
(i) Article 6(1)(a)
(ii) Article 6(1)(b)
(iii) Article 6(1)(c)
E. Phase II
F. Conduct of Merger Investigations
G. Summary
4. Substantive Appraisal of Concentrations Under the EU Merger Regulations
A. Background
B. Reform and the New Substantive Test
C. Burden and Standard of Proof
(i) Burden On Proof
(ii) Standard of Proof
D. A SIEC
(i) General and Definition
(ii) Market Power and Market Definition
E. Competitive Assessment of Horizontal Mergers
(i) Introduction and Overview
(ii) Indicators of Market Power: Market Shares, Concentration Levels, and the Gross Upward Pricing P
(iii) Non-Coordinated Anti-Competitive Effects
a. The Market Shares Held By the Merging Firms and the Closeness of Competition Between Them
b. The Ability of Customers to Switch
c. The Likelihood That Competitors Will Increase Supply
d. The Competitive Force Eliminated By the Merger
(iv) Coordinated Anti-Competitive Effects: Collective Or Joint Dominance
a. Background and Development of Collective Dominance Under the Old EUMR
Case T-342/99, Airtours Plc V Commission EU:T:2002:146
General Court
b. Establishing Coordinated Effects (Or Collective Dominance)
(v) Countervailing Buyer Power
(vi) Entry Analysis and Barriers to Entry and Expansion
(vii) Efficiencies
a. An Efficiency Defence?
b. The Horizontal Merger Guidelines
(viii) The Failing Firm Defence Or Rescue Mergers
F. Competitive Assessment of Non-Horizontal Mergers
(i) The Non-Horizontal Merger Guidelines
(ii) Market Shares and Concentration Levels
(iii) Assessment of Vertical Mergers
a. Non-Coordinated Effects: Foreclosure
b. Incentives to Foreclose and Article 102 TFEU
c. Other Non-Coordinated Effects and Coordinated Effects in Vertical Mergers
(iv) Assessment of Conglomerate Mergers
a. GE/Honeywell and Tetra Laval/Sidel
b. Non-Coordinated Effects: Foreclosure, Portfolio Power, and Other Theories of Harm
c. Coordinated Effects
G. Industrial, Social, and Other Policy
(i) General
(ii) Other Policies as a Countervailing Factor
(iii) Other Policies Where the Concentration Does Not Significantly Impede Effective Competition
H. Article 2(4), (5), JVs
I. Restrictions Directly Related and Necessary to the Concentration
J. Commitments Or Remedies
(i) Legal Basis and Time Periods
(ii) The Commission’s Notice On Remedies Acceptable Under the EUMR
(iii) Types of Commitment
(iv) Divestiture
(v) Other Remedies: Access Remedies, Behavioural Commitments, and ‘Remedy Packages’
(vi) Other Cases
(vii) Breach of a Condition Or Obligations
(viii) Modification and Waiver of Commitments
5. EUMR Statistics
6. Judicial Review and Other Proceedings
7. International Issues
A. Cooperation With Other Competition Authorities
B. The Long Arm of the EUMR
C. Reciprocity
8. Conclusions
16EU Competition Law and Policy in the Digital Economy
1. Introduction
2. Competition Dynamics in the Digital Economy
3. EU Competition Law Enforcement in the Digital Sphere
4. Enforcement Challenges in Digital Markets
A. The Scope of Application of the EU Competition Rules
(i) Market Definition
(ii) Market Power Assessment
(iii) Concepts of ‘Agreement’ and ‘Concerted Practice’
General Court
B. Novel Or Controversial Theories of Harm
(i) Self-Preferencing
(ii) Non-Compliance With Data Protection Obligations
(iii) Refusal to Supply ‘Big Data’
(iv) ‘Unfair Trading Conditions’
C. The Speed of Intervention
D. The Effectiveness of Remedies Imposed
5. Beyond Competition ‘Law’?
A. Enhanced Regulation of the Digital Economy: A Global Preoccupation?
B. Developments at EU Level: P2B Regulation, ‘New Competition Tool’, and the Digital Services Ac
C. The Digital Markets Act
(i) Designation as a ‘Gatekeeper’ Providing ‘Core Market Services’
(ii) Obligations Applying to Gatekeepers
(iii) The Enforcement Framework of the DMA
(iv) The Nature of the Obligations Under the DMA
(v) Comment
Designation of Gatekeepers
Subject Matter and Scope
6. Conclusions
17International Aspects
1. Introduction
2. International Law
3. US Law
A. General
B. The Effects Doctrine
C. Enforcement and the Reactions of Other States
D. Foreign Plaintiffs in US Courts
Opinion of the Supreme Court
Justice Breyer
E. The Effects Doctrine and Foreign Conduct Affecting Exports
4. EU Law
A. General
B. The Single Economic Entity Doctrine
Court of Justice
C. The Implementation Doctrine
Court of Justice
D. The Qualified Effects Doctrine
(i) The Meaning of ‘Qualified’ Effects
(ii) The Gencor Case
a. The Terms of the Merger Regulation
b. The Gencor Judgment
(iii) The InnoLux Case
(iv) The Intel Case
a. The Commission Decision
b. Intel in the General Court
c. The Intel Case in the Court of Justice
General Court
General Court
Court of Justice
E. Jurisdiction and Private Litigation
F. Enforcement Jurisdiction
5. International Cooperation
A. General
B. EU Bilateral Agreements
(i) EU–US Cooperation
a. The 1991 and 1998 Cooperation Agreements
b. The Application of the Agreements
c. Merger Best Practices
d. Joint Technology Competition Policy Dialogue
(ii) Other Dedicated Bilateral Competition Cooperation Agreements
(iii) Other Bilateral Cooperation Arrangements
C. Multilateral Cooperation
(i) General
(ii) UN Trade and Development
(iii) The Organisation for Economic Co-Operation and Development
(iv) The World Trade Organization
(v) The International Competition Network
6. Conclusions
Index