Competition Law and Policy in the ECand UK (2001)

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  1. EC and UK Competition Law: Commentary, Cases and Materials - Maher M. Dabbah - Google книги
  2. Competition Law Series
  3. The Commission unconditionally clears the acquisition of GitHub by Microsoft
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However, in Genccor Ltd v. Commission, the Court of First Instance now the General Court stated that it does not matter where the merger takes place, as long as it has an impact within the community, the regulations will apply. A transparent a market has a more concentrated structure, meaning firms can co-ordinate their behaviour with relative ease, firms can deploy deterrents and shield themselves form a reaction by their competitors and consumers.

In Airtours plc v. Due to the uncertainty raised by the decision in Airtours v. According to the Roller De La Mano article, the new test does not insist on dominance being necessary or sufficient, arguing that under the old law, there was underenforcement, a merger can have serious anti-competitive effect even without dominance [30]. Although the European Commission is less concerned with mergers taking place vertically, it has taken an interest in the effects of conglomerate mergers. Article is aimed at preventing undertakings that have a dominant market position from abusing that position to the detriment of consumers.

It provides that,. The provision aims to protect competition and promote consumer welfare by preventing firms from abusing dominant market positions. Additionally, the European Commission published its Guidance on Article [] Enforcement Priorities , [36] which details the body's aims when applying Article , reiterating that the ultimate goal is the protection of the competitive process and the concomitant consumer benefits that are derived from it.

Notwithstanding these stated objectives, Article is quite controversial and has been much scrutinised. In applying Article , the Commission must consider two points. Firstly, it is necessary to show that an undertaking holds a dominant position in the relevant market and, secondly, there must be an analysis of the undertaking's behaviour to ascertain whether it is abusive.

Determining dominance is often a question of whether a firm behaves "to an appreciable extent independently of its competitors, customers and ultimately of its consumer. With regard to abuse, it is possible to identify three different forms that the EU Commission and Courts have recognised. Although there is no rigid demarcation between these three types, Article has most frequently been applied to forms of conduct falling under the heading of exclusionary abuse.

Generally, this is because exploitative abuses are perceived to be less invidious than exclusionary abuses because the former can easily be remedied by competitors provided there are no barriers to market entry, whilst the latter require more authoritative intervention. The Article does not contain an explicit definition of what amounts to abusive conduct and the courts have made clear that the types of abusive conduct in which a dominant firm may engage is not closed.

Whereby a customer is required to purchase all or most of a particular type of good or service from a dominant supplier and is prevented from buying from others. Similar to tying, whereby a supplier will only supply its products in a bundle with one or more other products. Refusing to supply a competitor with a good or service, often in a bid to drive them out of the market.

Where a dominant firm deliberately reduces prices to loss-making levels in order to force competitors out of the market. Arbitrarily charging some market participants higher prices that are unconnected to the actual costs of supplying the goods or services. Whilst there are no statutory defences under Article , the Court of Justice has stressed that a dominant firm may seek to justify behaviour that would otherwise constitute abuse, either by arguing that the behaviour is objectively justifiable or by showing that any resulting negative consequences are outweighed by the greater efficiencies it promotes.


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Possibly the least contentious function of competition law is to control cartels among private businesses. Any "undertaking" is regulated, and this concept embraces de facto economic units, or enterprises, regardless of whether they are a single corporation, or a group of multiple companies linked through ownership or contract.

To violate TFEU article , undertakings must then have formed an agreement, developed a "concerted practice", or, within an association, taken a decision. Like US antitrust , this just means all the same thing; [75] any kind of dealing or contact, or a "meeting of the minds" between parties. Covered therefore is a whole range of behaviour from a strong handshaken, written or verbal agreement to a supplier sending invoices with directions not to export to its retailer who gives "tacit acquiescence" to the conduct.

This includes both horizontal e. Article has been construed very widely to include both informal agreements gentlemen's agreements and concerted practices where firms tend to raise or lower prices at the same time without having physically agreed to do so. However, a coincidental increase in prices will not in itself prove a concerted practice, there must also be evidence that the parties involved were aware that their behaviour may prejudice the normal operation of the competition within the common market.

EC and UK Competition Law: Commentary, Cases and Materials - Maher M. Dabbah - Google книги

This latter subjective requirement of knowledge is not, in principle, necessary in respect of agreements. As far as agreements are concerned the mere anticompetitive effect is sufficient to make it illegal even if the parties were unaware of it or did not intend such effect to take place. Exemptions to Article behaviour fall into three categories. Firstly, Article 3 creates an exemption for practices beneficial to consumers, e.

In practice the Commission gave very few official exemptions and a new system for dealing with them is currently under review. Secondly, the Commission agreed to exempt 'Agreements of minor importance' except those fixing sale prices from Article In this situation as with Article see below , market definition is a crucial, but often highly difficult, matter to resolve. Thirdly, the Commission has also introduced a collection of block exemptions for different contract types. These include a list of contract permitted terms and a list of banned terms in these exemptions.

Since the Modernisation Regulation, the European Union has sought to encourage private enforcement of competition law.

Competition Law Series

The task of tracking down and punishing those in breach of competition law has been entrusted to the European Commission, which receives its powers under Article TFEU. Under this Article, the European Commission is charged with the duty of ensuring the application of Articles and TFEU and of investigating suspected infringements of these Articles. Article TFEU grants extensive investigative powers including the notorious power to carry out dawn raids on the premises of suspected undertakings and private homes and vehicles.

There are many ways in which the European Commission could become aware of a potential violation: The European Commission may carry out investigation or inspections, for which it is empowered to request information from governments, competent authorities of Member States, and undertakings. The Commission also provides a leniency policy , under which companies that whistle blow over the anti-competition policies of cartels are treated leniently and may obtain either total immunity or a reduction in fines.

The European Commission also could become aware of a potential competition violation through the complaint from an aggrieved party. In addition, Member States and any natural or legal person are entitled to make a complaint if they have a legitimate interest. The gravity and duration of the infringement are to be taken into account in determining the amount of the fine. The basic amount relates, inter alia, to the proportion of the value of the sales depending on the degree of the gravity of the infringement.

In this regard, Article 5 of the aforementioned guideline states, that. In a second step, this basic amount may be adjusted on grounds of recidivism or leniency. The highest cartel fine which was ever imposed in a single case was related to a cartel consisting of five truck manufacturers. In this case, MAN was not fined as it revealed the existence of the cartel to the Commission see note regarding leniency below. All companies acknowledged their involvement and agreed to settle the case. Another negative consequence for the companies involved in cartel cases may be the adverse publicity which may damage the company's reputation.

Questions of reform have circulated around whether to introduce US style treble damages as added deterrent against competition law violaters. Hence, there has been debate over the legitimacy of private damages actions in traditions that shy from imposing punitive measures in civil actions. According to the Court of Justice of the European Union, any citizen or business who suffers harm as a result of a breach of the European Union competition rules Articles and TFEU should be able to obtain reparation from the party who caused the harm. However, despite this requirement under European law to establish an effective legal framework enabling victims to exercise their right to compensation, victims of European Union competition law infringements to date very often do not obtain reparation for the harm suffered.

The amount of compensation that these victims are foregoing is in the range of several billion Euros a year. Therefore, the European Commission has taken a number steps since to stimulate the debate on that topic and elicit feedback from stakeholders on a number of possible options which could facilitate antitrust damages actions. Based on the outcomes of several public consultations, the Commission has suggested specific policy choices and measures in a White Paper.

In , the European Parliament and European Council issued a joint directive on 'certain rules governing actions for damages under national law for infringements of the competition law provisions of the Members States and of the European Union'. A special instrument of the European Commission is the so-called sector inquiry in accordance with Art.

In case of sector inquiries, the European Commission follows its reasonable suspicion that the competition in a particular industry sector or solely related to a certain type of contract which is used in various industry sectors is prevented, restricted or distorted within the common market. Thus, in this case not a specific violation is investigated. Nevertheless, the European Commission has almost all avenues of investigation at its disposal, which it may use to investigate and track down violations of competition law. The European Commission may decide to start a sector inquiry when a market does not seem to be working as well as it should.

This might be suggested by evidence such as limited trade between Member States, lack of new entrants on the market, the rigidity of prices, or other circumstances suggest that competition may be restricted or distorted within the common market. In the course of the inquiry, the Commission may request that firms - undertakings or associations of undertakings - concerned supply information for example, price information.

This information is used by the European Commission to assess whether it needs to open specific investigations into intervene to ensure the respect of EU rules on restrictive agreements and abuse of dominant position Articles and of the Treaty on the Functioning of the European Union.

There has been an increased use of this tool in the recent years, as it is not possible any more for companies to register a cartel or agreement which might be in breach of competition law with the European Commission, but the companies are responsible themselves for assessing whether their agreements constitute a violation of European Union Competition Law self assessment. Traditionally, agreements had, subject to certain exceptions, to be notified to the European Commission, and the Commission had a monopoly over the application of Article TFEU former Article 81 3 EG.

One of the most spectacular sector inquiry was the pharmaceutical sector inquiry which took place in and in which the European Commission used dawn raids from the beginning. The European Commission launched a sector inquiry into EU pharmaceuticals markets under the European Competition rules because information relating to innovative and generic medicines suggested that competition may be restricted or distorted.

The inquiry related to the period to and involved investigation of a sample of medicines. The inquiry therefore concentrated on those practices which companies may use to block or delay generic competition as well as to block or delay the development of competing originator drugs. The leniency policy [89] consists in abstaining from prosecuting firms that, being party to a cartel, inform the Commission of its existence.

EU competition commissioner on Amazon antitrust concerns

The leniency policy was first applied in The Commission Notice on Immunity from fines and reduction of fines in cartel cases [90] guarantees immunity and penalty reductions to firms who co-operate with the Commission in detecting cartels. The mechanism is straightforward. The first firm to acknowledge their crime and inform the Commission will receive complete immunity, that is, no fine will be applied.

Co-operation with the Commission will also be gratified with reductions in the fines, in the following way: [91]. This policy has been of great success as it has increased cartel detection to such an extent that nowadays most cartel investigations are started according to the leniency policy. The purpose of a sliding scale in fine reductions is to encourage a "race to confess" among cartel members. In cross border or international investigations, cartel members are often at pains to inform not only the EU Commission, but also National Competition Authorities e.

These powers are shared with concurrent sectoral regulators such as Ofgem in energy, Ofcom in telecoms, the ORR in rail and Ofwat in water. Its predecessor was established in the s. Today it administers competition law in France, and is one of the leading national competition authorities in Europe. It was first established in and comes under the authority of the Federal Ministry of the Economy and Technology.

Its headquarters are in the former West German capital, Bonn and its president is Andreas Mundt, who has a staff of people. Today it administers competition law in Germany, and is one of the leading national competition authorities in Europe. However, the acquisition of GitHub by Microsoft, which is just one in a series of similar transactions, testifies to an important change in the tech industry concerning the way tech giants and other important companies, that have been typically associated with strong protection of their intellectual property, view open source.

As Microsoft itself admits, it hopes that its commitment will improve its reputation among developers, many of whom play an important part in the procurement of DevOps tools and cloud services for companies. Now, if one were to evaluate this acquisition considering the acquisition of LinkedIn , another important motivation could be revealed.

By acquiring both LinkedIn and GitHub, Microsoft gained access to probably the most vital source of information on what top contributing developers are working on. As in a number of previous transactions involving such products, the Commission concluded that it was possible to leave the product market definitions open since, regardless of how markets would be defined, the transaction did not raise serious doubts as to its compatibility with the internal market. However, this may not always be the case.

Certainly, competition analysis in mergers involving OSS is trickier than in mergers involving proprietary systems: the identification of all the providers of the product is more challenging as is the determination of whether entry will occur in a timely manner. Given that in the foreseeable future we are likely to see more mergers involving OSS and dominant tech players, it is important that competition authorities develop an in-depth understanding of intricate and complex competition-relevant issues that open-source software raises.

See Commission Decision, paras. As the Commission indicated, mass switching of users was one of the risks associated with the acquisition of GitHub that Microsoft had identified. Ibid, para. See Commission Decision, footnote Find out more or adjust your settings. This website uses cookies so that we can provide you with the best user experience possible. Cookie information is stored in your browser and performs functions such as recognising you when you return to our website and helping our team to understand which sections of the website you find most interesting and useful.

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The Commission unconditionally clears the acquisition of GitHub by Microsoft

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From policy to law to regulation

Sign in. Log into your account. Forgot your password? Password recovery. He has also published a number of textbooks and monographs, as well as articles, on various aspects of competition law in the UK, EU, US and East Asia. Professor Furse is currently acting as the expert advisor to a research project in competition law in Thailand. Furse, M. World Competition , 41 1 , pp. European Competition Journal , 12 , pp.

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World Competition , 36 2 , pp. Edward Elgar: Cheltenham. ISBN Oxford University Press: Oxford. European Competition Journal , 4 1 , pp. European Competition Journal , 9 1 , pp. European Competition Law Review , 32 5 , pp. World Competition , 33 1 , pp. European Competition Law Review , 31 3 , pp. In: Dabbah, M. Anti-Cartel Enforcement Worldwide.