The Foundations of European Union Competition Law

2011 ◽  
Author(s):  
Nazzini Renato
Keyword(s):  
Interdisciplinary Approach ◽  
Competition Law ◽  
Consumer Welfare ◽  
Case Law ◽  
Analytical Framework ◽  
Dominant Position ◽  
Eu Competition Law ◽  
The Common ◽  
Definition Of ◽  
Union Competition

Article 102 of the TFEU prohibits the abuse of a dominant position as incompatible with the common market. Its application in practice has been wide-ranging with goals as diverse as the preservation of an undistorted competitive process, the protection of economic freedom, the maximisation of consumer welfare, total welfare, or economic efficiency all cited as possible or desirable objectives. These conflicting aims have raised complex, conceptual questions such as how a dominant position should be defined, and how abuses can be assessed. This book addresses the conceptual questions underlying the test to be applied under Article 102 in light of the objectives of EU competition law. Adopting a comparative and interdisciplinary approach, the book covers all the main issues relating to Article 102, including the definition of dominance, the taxonomy of abuses, and the criteria for the assessment of individual abusive practices. It provides an in-depth doctrinal and normative commentary of the case law with the aim of establishing an intellectually robust and practically workable analytical framework for abuse of dominance.

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.

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.

scholarly journals Applicability of European Union Competition Law to Health Care Providers: The Dividing Line between Economic and Noneconomic Activities

2020 ◽  
Author(s):  
Bruno Nikolić
Keyword(s):  
Health Care ◽  
Health Care Providers ◽  
Health Spending ◽  
Competition Law ◽  
Case Law ◽  
Financial Sustainability ◽  
Care Providers ◽  
Eu Competition Law ◽  
Case Basis ◽  
Union Competition

Abstract Ever-increasing health spending, which, according to future projections, continues to outpace economic growth, will further endanger the financial sustainability of health systems. In a quest to improve the efficacy and efficiency of the health system and thus strengthen its financial sustainability, member states are employing market-based mechanisms to finance, manage, and provide health care. However, the introduction of elements of competition is constrained by the application of EU competition law, which raises significant concerns regarding the applicability of competition law and its limits in the field of health care. Due to the lack of a clear definition in EU legislation, the applicability and scope of competition law are determined on a case-by-case basis, which reveals an inconsistent approach by the European Commission and the CJEU regarding the application of competition law to health care providers and has created legal uncertainty. The aim of this article is to analyze relevant decisions by the commission and the CJEU case law in the pursuit of “boundaries” that may trigger the applicability of competition law with regard to health care providers. Based on the findings of the analysis, the article proposes a set of principles or guidelines for determining whether a health care provider should be considered as an undertaking and, as such, subject to EU competition law.

THE EFFECTS OF BROADCASTING DIGITIZATION ON EU COMPETITION LAW: A TALE OF EU COPYRIGHT POLICIES

2019 ◽  
Author(s):  
Konstantina Bania
Keyword(s):  
Market Integration ◽  
Competition Law ◽  
Case Law ◽  
Single Market ◽  
Market Strategy ◽  
Digital Copyright ◽  
Eu Competition Law ◽  
Union Competition ◽  
The Eu ◽  
Competition Enforcement

ABSTRACT In recent years, buzz terms such as “geo-blocking”, “online content portability”, and “digital copyright” have been making rounds in EU policy circles. This is largely attributed to the “Digital Single Market Strategy”, an ambitious reform the objective of which is to ensure seamless cross-border access to online services. Pursuit of this objective appears to be largely driven by the assumption that limiting the exclusivity of copyright would stimulate intra-Union competition in content markets. Against the background of EU competence limitations in the field of copyright and the increasing popularity of global U.S. firms in European audiovisual markets, this paper argues that EU Competition Law has vainly been instrumentalized to complete a single market for content. More particularly, based on legal and policy developments, which appear to challenge widespread licensing practices, sector-specific economics, and the case law that sets the conditions under which competition enforcement may introduce limits to copyright protection, this study develops the following twofold argument: in an attempt to create a single market for copyright-protected broadcast content, the EU has stretched the boundaries of competition law in an excessive manner and such unjustified interference with copyright is simply inadequate to promote competition and market integration.

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.

scholarly journals The Evolution of Classical Evaluation Standards in Competition Law: The Legal Assessment of Tying in View of Challenges Raised by Digital Markets

2021 ◽  
pp. 113-139
Author(s):  
Mateusz Musielak
Keyword(s):  
Technological Development ◽  
Competition Law ◽  
Case Law ◽  
Legal Framework ◽  
Evaluation Standards ◽  
Dominant Position ◽  
Legal Assessment ◽  
Customer Group ◽  
Type Of Abuse ◽  
Modern Tool

This paper provides a detailed review of evaluation standards for the legal assessment of tying. This practice, which constitutes an abuse of a dominant position, is a significant breach of competition law. The mechanism of this type of abuse is based on taking advantage of market power in the supply of one product to create packed offerings capable of precluding competition from superior rival solutions. Tying occurs when one product, the “tying product”, is sold only with another product, the “tied product”. In the prevailing number of cases, tying serves to consolidate the company’s dominant position on the tied product market, which usually aims to share the tying product’s large customer group with the less-desired product. However, tying is not illegal per se. In many cases, it does not lead to any anti-competitive concerns, and might be beneficial for consumers. This is why each assessment of this conduct must be carefully evaluated with special attention given to the effects, in accordance with the generally applied effect-based approach, and also potential efficiencies. An analysis of the case-law and literature reveals the basic mechanisms for conducting a legal assessment of tying. However, the use of these mechanisms will not be possible without their adaptation to the ongoing changes caused by technological development. Digital markets not only generate incremental revenues, but are also the sources of new or unusual legal arrangements. It will more frequently be the case that existing provisions will not be able to address every new practice accurately without new acts. The Digital Markets Act aims to adapt the existing legal framework to contemporary market realities and to become a modern tool for enforcing competition law rules on digital markets. The European Commission is seeking to broaden its powers to intervene at the earliest possible stage, before an undertaking affects the competition on a market.

14. The elements of Article 102 TFEU

2019 ◽  
pp. 309-343
Author(s):  
Sandra Marco Colino
Keyword(s):  
Competition Law ◽  
Internal Market ◽  
Substantial Part ◽  
Dominant Position ◽  
Eu Competition Law ◽  
Article 102 Tfeu

This chapter discusses Article 102 TFEU, which applies to abusive conduct engaged in by undertakings in a dominant position. The dominant position must be held in a ‘substantial part’ of the internal market for EU competition law to apply. Abuses can take many forms, and include conduct designed to preserve or expand the power of the undertaking (‘exclusionary abuses’) and conduct aiming to exploit the power of the undertaking (‘exploitative abuses’). No exemptions are available, but the alleged abusive conduct may be defended on the grounds that it is ‘objectively justifiable’ or if there are efficiency justifications. A breach of Article 102 TFEU may incur penalties, damages, and a requirement of conduct modification.

8. Competition, the State, and Public Undertakings: Article 106 TFEU

2019 ◽  
pp. 582-641
Author(s):  
Alison Jones ◽  
Brenda Sufrin ◽  
Niamh Dunne
Keyword(s):  
Direct Effect ◽  
Competition Law ◽  
Case Law ◽  
State Aid ◽  
The State ◽  
Economic Interest ◽  
Inequality Of Opportunity ◽  
Dominant Position ◽  
Privileged Position ◽  
General Economic Interest

This chapter examines how competition law applies to the actions of the State when it intervenes in the market through undertakings which it controls or owns or which it places in a privileged position. The discussion includes the principle of Union loyalty in Article 4(3) TEU; Article 106(1); Article 106(2); and the Commission’s supervisory and policing powers in Article 106(3). Article 106(1) is a prohibition addressed to Member States against enacting or maintaining in force any measure in relation to public undertakings or undertakings to which they have granted special or exclusive rights which are contrary to the Treaty rules. The chapter discusses what is meant by ‘public undertakings’ and ‘special or exclusive rights’ and examines in the light of the case law what measures are forbidden by Article 106(1), including those involving the cumulation of rights, the extension of a dominant position from one market to another, and the creation of situations of inequality of opportunity. Article 106(2) gives a limited derogation from Article 106(2) to undertakings entrusted with the operation of services of general economic interest (SGEIs). The chapter discusses the concept of ‘services of general economic interest’ and examines the cases in which the derogation has been applied or not applied, including the application of Article 106(2) to compensation for the provision of SGEIs which constitutes State aid. The chapter also considers Article 106(3) and the question of the direct effect of Article 106(1) and (2).

1. Introduction to Competition Law

2019 ◽  
pp. 1-74
Author(s):  
Alison Jones ◽  
Brenda Sufrin ◽  
Niamh Dunne
Keyword(s):  
Economies Of Scale ◽  
Competition Law ◽  
Consumer Welfare ◽  
Perfect Competition ◽  
Competition Analysis ◽  
Elasticity Of Demand ◽  
Eu Competition Law ◽  
Demand Curves ◽  
Producer Surplus ◽  
Total Welfare

This chapter provides an introduction to, and basis for, the material discussed in the subsequent chapters. It introduces some relevant concepts of microeconomics including demand curves, consumer and producer surplus, elasticity of demand, and economies of scale and scope. It discusses the model of perfect competition and the concepts of allocative, productive and dynamic efficiency; the problems in competition terms of monopoly and oligopoly; and the concept of welfare, particularly consumer welfare and total welfare. It considers various schools of competition analysis and theories and concepts relevant to competition law. It discusses the possible objectives of competition law, and particularly considers what objectives are pursued by EU competition law. The chapter also looks at US antitrust law; competition law and the digital economy; competition law and regulation; and at some basic issues in the application of EU competition law.

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