Anticompetitive Effects in EU Competition Law

2020 ◽  
Author(s):  
Pablo Ibáñez Colomo
Keyword(s):  
Competition Law ◽  
Case Law ◽  
Time Variable ◽  
Court Of Justice ◽  
Open Questions ◽  
Eu Competition Law ◽  
Competitive Disadvantage ◽  
Probability Threshold ◽  
The Impact ◽  
Freedom Of Action

Abstract This article examines the meaning and scope of the notion of anticompetitive effects in EU competition law. It does so by bringing together several strands of the case law (and this across all provisions, namely Articles 101 and 102 TFEU and merger control). The analysis is structured around a framework that considers the main variables that shape the notion in practice: the time variable (actual or potential effects); the dimensions of competition and the counterfactual; the meaning of effects and the probability threshold (plausibility, likelihood, certainty). The exercise shows that it is possible to discern a concrete meaning to the notion of anticompetitive effects. Some central questions, including the role and operation of the counterfactual and the threshold of effects, have already been answered by the Court of Justice. In particular, it has long been clear that anticompetitive effects amount to more than a mere competitive disadvantage and/or a limitation of a firm’s freedom of action. The impact on equally efficient firms’ ability and/or incentive to compete would need to be established. At the same time, some open questions and some potential areas of friction (relating, inter alia, to stakeholders’ tendency to conflate appreciability and effects) remain. These are also discussed.

LOYALTY REBATES AND ABUSE OF DOMINANCE

2018 ◽  
Vol 77 (1) ◽  
pp. 25-28
Author(s):  
Mark Friend
Keyword(s):  
Competition Law ◽  
Case Law ◽  
Analytical Framework ◽  
Court Of Justice ◽  
Eu Competition Law ◽  
Abuse Of Dominance ◽  
Article 102 Tfeu ◽  
Missed Opportunity

THE recent judgment of the Court of Justice in Intel v Commission (Case C-413/14 P, EU:C:2017:632) deserves a cautious welcome for signalling a move to a more economics-based approach to the assessment of loyalty rebates under Article 102 TFEU, and for modulating the rigid legal presumptions that have characterised nearly four decades of case law. Yet it also represents a missed opportunity to provide a comprehensive analytical framework for one of the more unsatisfactory areas of EU competition law.

The Role of Private Enforcement within EU Competition Law

2014 ◽  
Vol 16 ◽  
pp. 143-187 ◽  
Author(s):  
Niamh Dunne
Keyword(s):  
Hard Core ◽  
Competition Law ◽  
Case Law ◽  
Private Enforcement ◽  
Public Enforcement ◽  
Court Of Justice ◽  
Eu Competition Law ◽  
Competition Rules ◽  
The Right

AbstractPrivate enforcement is an increasingly prominent element of EU competition law. The forthcoming Directive on damages actions aims to strengthen and, to a degree, harmonise procedures for private competition litigation, while recent case law of the Court of Justice reaffirms the centrality of the right to claim compensation for losses stemming from breach of the competition rules. Moreover, this right has been presented as an essentially unitary one, whereby any victim of any type of competition infringement has, in principle, the right to claim damages. This chapter reviews the evolving framework, and considers, specifically, the role for private enforcement within the overall system of EU competition law. Taking into account the Commission’s efforts to facilitate and increase private enforcement, the emerging EU public enforcement framework, as well as the substantive EU competition rules more generally, this chapter argues that, contrary to the rhetoric, private enforcement is a mechanism best adapted, and arguably most appropriate, for use only in the context of hard-core cartels. It is further suggested that the gap between rhetoric and reality is not problematic as such, yet difficulties may arise insofar as these divergences conflict with the principle of effectiveness.

scholarly journals PATENT ASSERTION ENTITIES AND EU COMPETITION LAW

2019 ◽  
Vol 15 (2-3) ◽  
pp. 204-236 ◽  
Author(s):  
Damien Geradin
Keyword(s):  
Competition Law ◽  
Active Role ◽  
Case Law ◽  
Significant Degree ◽  
Product Markets ◽  
Eu Competition Law ◽  
Degree Of Control ◽  
The Impact ◽  
Operating Company

Abstract Patent assertion entities (PAEs) are playing an increasingly active role in Europe. Their activities are controversial in that although they may be a source of efficiencies, they may also create anticompetitive harm. Given the growing trend of operating companies transferring patents to PAEs to increase their licensing revenues, the risks of anticompetitive harm created by PAE activities must be taken seriously. When analyzing the impact of PAE activities on competition, a distinction must be drawn between “pure” PAEs, which acquire patents from a variety of sources and generate revenues by asserting them, and “hybrid” PAEs, which acquire patents from operating companies and maintain a relationship with these companies postacquisition. Although pure PAEs create risks of exploitation, hybrid PAEs create exclusionary concerns as such PAEs may be used by operating companies to harm their rivals on downstream product markets. These exclusionary concerns are particularly serious when the operating company retains a significant degree of control over the PAE’s activities following the transfer of the patents. As there is currently no EU competition case-law on the activities of PAEs, this article attempts to show through hypotheticals that depending on the circumstances of each case, privateering may lead to exclusion. JEL: K21, K41, L24, L40.

Private Party Liability in EU Law: In Search of the General Regime

2010 ◽  
Vol 12 ◽  
pp. 257-282 ◽  
Author(s):  
Dorota Leczykiewicz
Keyword(s):  
General Principle ◽  
Competition Law ◽  
Case Law ◽  
Eu Law ◽  
Private Party ◽  
Court Of Justice ◽  
Eu Competition Law ◽  
State Liability ◽  
Judicial Protection ◽  
Normative Justification

AbstractThe emergence of private party liability in damages is EU law has been much discussed by academics, but it is clear from the case law of the Court of Justice that we do not yet have a principle of private party liability analogous to the principle of Member State liability. This chapter examines under what conditions it would be justified to claim that there was indeed a general principle of private party liability in EU law. Furthermore, the chapter explains that the introduction of the general principle of private party liability would require a thorough clarification of some of the most fundamental, yet still unclear, concepts of EU law, such as direct effect, the horizontal applicability of EU norms and the principle of effective judicial protection. It is argued that the jurisdiction of the Court of Justice to introduce a general regime of private party liability in damages is not without controversy and that the judicial creation of the principle will be legitimate only if adequate normative justification is provided for its presence in EU law. In this respect, it has to be recognised that EU competition law is not an adequate legal setting for the general regime to be born, because it does not bring to light tensions arising in other contexts.

Private Party Liability in EU Law: In Search of the General Regime

2010 ◽  
Vol 12 ◽  
pp. 257-282
Author(s):  
Dorota Leczykiewicz
Keyword(s):  
General Principle ◽  
Competition Law ◽  
Case Law ◽  
Eu Law ◽  
Private Party ◽  
Court Of Justice ◽  
Eu Competition Law ◽  
State Liability ◽  
Judicial Protection ◽  
Normative Justification

AbstractThe emergence of private party liability in damages is EU law has been much discussed by academics, but it is clear from the case law of the Court of Justice that we do not yet have a principle of private party liability analogous to the principle of Member State liability. This chapter examines under what conditions it would be justified to claim that there was indeed a general principle of private party liability in EU law. Furthermore, the chapter explains that the introduction of the general principle of private party liability would require a thorough clarification of some of the most fundamental, yet still unclear, concepts of EU law, such as direct effect, the horizontal applicability of EU norms and the principle of effective judicial protection. It is argued that the jurisdiction of the Court of Justice to introduce a general regime of private party liability in damages is not without controversy and that the judicial creation of the principle will be legitimate only if adequate normative justification is provided for its presence in EU law. In this respect, it has to be recognised that EU competition law is not an adequate legal setting for the general regime to be born, because it does not bring to light tensions arising in other contexts.

scholarly journals Reshaping Liability – The Concept of Undertaking Applied to Private Enforcement of EU Competition Law

2021 ◽  
Author(s):  
Benedikt Freund
Keyword(s):  
Competition Law ◽  
Case Law ◽  
Private Enforcement ◽  
Minor Importance ◽  
The European Union ◽  
Public Enforcement ◽  
National Courts ◽  
Court Of Justice ◽  
Eu Competition Law ◽  
Recent Developments

Abstract It is undeniable that a ‘follow-on damages claim culture’ is on the rise in Europe. The case-law of the Court of Justice of the European Union has been acting as a catalyst to ensure that victims of cartel infringements are in a position to effectively enforce their right to damages. Although the path followed by the Court removed many obstacles for cartel victims it has also departed from traditional concepts of tort law, including liability for civil damages. By extending concepts which were traditionally confined to public enforcement to private enforcement – such as the notion of undertaking – national courts will be faced with new challenges. It is inevitable that questions which were previously of minor importance in public proceedings will carry a different weight in civil litigation. This article focuses on recent developments and explores possible consequences on the imputation of liability in private enforcement of EU competition law.

Part V The Analytical Framework of Article 102, 12 General Conclusion

2011 ◽  
Author(s):  
Nazzini Renato
Keyword(s):  
Competition Law ◽  
Case Law ◽  
Analytical Framework ◽  
Current Case ◽  
Eu Competition Law ◽  
The Law ◽  
Normative Foundations ◽  
Main Thread

This concluding chapter retraces the main thread of the reasoning in this book, from the identification of the normative foundations of competition law to the discussion of the objective of EU competition law and Article 102 and the design of the tests to determine whether conduct is abusive and whether one or more undertakings are dominant. The objective, principles, and tests that constitute the legal fabric of Article 102 can be summarized in thirty-four propositions divided into three parts: objectives and general principles; assessment of conduct; and assessment of dominance. The chapter then highlights the main areas where the current case law or enforcement practice is in need of being reviewed. These main areas include the law on conditional rebates, refusal to supply, margin squeeze, tying, discrimination, and exploitative abuses.

7. The Direct Jurisdiction of the Court of Justice

2019 ◽  
pp. 208-248
Author(s):  
Nigel Foster
Keyword(s):  
Member State ◽  
European Commission ◽  
Judicial Review ◽  
Competition Law ◽  
Member States ◽  
Eu Regulation ◽  
Court Of Justice ◽  
Eu Competition Law ◽  
The Right ◽  
Interim Measures

This chapter considers the actions commenced before the Court of Justice. These include actions by the European Commission and other member states against a member state (Articles 258–60 TFEU); judicial review of acts of the institutions (Article 263 TFEU); the action against the institutions for a failure to act (Article 265 TFEU); actions for damages (Articles 268 and 340 TFEU); and the right to plead the illegality of an EU regulation (Article 277 TFEU). The chapter also considers interim measures under Articles 278 and 279 TFEU and enforcement actions arising from the Commission enforcement of EU competition law against individuals.

The Protection of Turkish Citizens Against Expulsion—This Far and No Further? The Impact of the Ziebell Case

2013 ◽  
Vol 14 (1) ◽  
pp. 239-267
Author(s):  
Kathrin Hamenstädt
Keyword(s):  
Case Law ◽  
Fundamental Rights ◽  
Association Agreement ◽  
Advantages And Disadvantages ◽  
Court Of Justice ◽  
Council Decision ◽  
European Court ◽  
The One ◽  
The Impact

This Article focuses on the Ziebell judgment, in which the European Court of Justice rejected the analogous application of the protection against expulsion for Union citizens to Turkish citizens covered by the Association Agreement. The judgment is placed in the context of the opinion of the Advocate General, the pre-Ziebell judgments of the Court, and judgments of German courts regarding the expulsion of Turkish citizens. On the one hand, against the background of previous case-law of the Court, the judgment might be seen as a setback. On the other hand, the Court's reference to the Long-Term Residents Directive also provides for new interpretative possibilities. Next to the applicability of the directive and the advantages and disadvantages for Turkish nationals triggered by this shift, the interpretative possibilities are discussed in light of fundamental rights and the stand-still obligation anchored in Association Council Decision 1/80.

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