What’s the abuse? A quest for the appropriate legal test in product design cases under Article 102 TFEU

2019 ◽  
Vol 26 (3) ◽  
pp. 421-440
Author(s):  
Florence Eicher

In recent years, vastly changing technology markets have posed challenges to the application of well-established rules and principles in European Union competition law. In particular, the integration of technical functionalities appears to have opened new possibilities for dominant firms to leverage market power. Aware of these developments but often oblivious to the apparent overlap, the European Union Commission and the Court of Justice of the European Union engaged in clear-cut analyses under one or the other well-established theory of harm. In particular, the dividing line between the two standalone concepts on refusals to deal and tying practices appears to have been either repositioned or misapplied in the Microsoft Saga, which marks the peak of this development. In classifying the respective conduct as abusive tying practices in the Microsoft Saga, it is questionable whether the Commission was granted a shortcut by the Court itself, passing (unsuccessful) refusal to deal cases disguised as (successful) tying cases. Considering the significantly lower standard of proof applicable to tying practices as opposed to refusals to deal, stakeholders can be expected to exploit the vague boundaries. With this concern in mind, this essay aims to identify the boundaries between refusal to supply and tying cases, where product integration risks resulting in anti-competitive foreclosure on technology markets. On a more fundamental level, this essay will question whether the peculiar features of technology markets justify a different treatment.

2021 ◽  
Vol 7 (1) ◽  
pp. 127-133
Author(s):  
Mariia Sirotkina ◽  
Olena Lomakina ◽  
Olena Shkarnega

The Association Agreement between the European Union and Ukraine is a new format of relations aimed at creating a deep and comprehensive free trade area (DCFTA) between Ukraine and the EU with the gradual integration of Ukraine into the internal market of the European Union. Focusing on the experience of rule-making of the EU member states, it is necessary to define and implement the legal rules and principles of the national judiciary, taking into account the rules and principles of European law (Chornomaz, 2016). In accordance with the strategy of European integration of our country, the adaptation of Ukrainian legislation is to approximate it with the modern European legal system, which will ensure the development of the political, entrepreneurial, social, cultural activity of Ukrainian citizens, economic development of the state within the EU to facilitate the increase of standards of living of the population. The implementation of the provisions of European legislation provided by the economic part of the Association Agreement (AA) is extremely important in the context of reforms, as the provisions can and should serve as a basis for a new model of socio-economic development of Ukraine. The deepening of the processes of humanization and democratization of Ukrainian society, the gradual introduction of principles and rules of European law into the national judiciary through reforms in the field of justice, inter alia, have led to qualitative updating of criminal procedure legislation of Ukraine, in particular: use of differentiated approach to legal conflicts between persons who have committed criminal offences, which do not pose a great public danger, and victims; simplification and reduction of the procedure of criminal proceedings; ensuring procedural savings; reduction of the caseload; allowing the parties of the conflict to resolve issues of exemption from criminal liability in case of reconciliation between the offender and the victim independently, the appointment of the negotiated punishment and release from serving with probation, etc. Given the specifics of the approach to improving relations with neighbouring countries on a differentiated basis, the EU seeks to identify and base on existing positive sources of sustainability, as well as to monitor and respond to weaknesses with the appropriate set of methods and resources at its disposal. The purpose of the article is to study a theoretical and practical definition of challenges of adaptation of Ukrainian legislation to the legislation of the European Union, institutional and organizational mechanisms of DCFTA implementation in the field of justice and certain norms of the current criminal procedure legislation. Ukraine is undergoing the second phase of radical reform of government structures; it has been continuing for 15 years but, unlike other countries, it is much more difficult for Ukraine to get rid of the burden of past problems. Judicial reform is also underway and domestic legislation is being significantly changed, including the transformation of the judicial proceedings. The topical issue of the development of judicial reforms is an imperfection, and sometimes a contradiction of regulations, which negatively affects the process of realization of rights and responsibilities of all subjects of public relations, slows down the development of Ukraine as a state governed by the rule of law. However, the introduction of institutions of concluding agreements, simplified proceedings, probation, and later mediation, into the criminal procedure legislation of Ukraine indicates the readiness of our state to change the concept of criminal procedure in accordance with the European standards, which will improve the situation of all parties to criminal proceedings. However, they need further completion and improvement. We are convinced that the introduction of such institutions will contribute to the legal development of society to achieve the European standards of restorative justice, which will encourage the further introduction of the latter in the legislation of Ukraine, resolving criminal conflicts by reaching a compromise between parties in cases specified by law. One of the ways to solve this problem in Ukraine is to regulate the process of adoption of regulations by the subjects of rule-making and taking into account the provision that legality as an objective property of law, in general, is the necessary condition and the main principle of the rule-making process.


2021 ◽  
pp. 306-322
Author(s):  
Norman Doe ◽  
Frank Cranmer

All three major European supranational institutions—the European Union (EU), the Council of Europe (CoE), and the Organization for Security and Co-operation in Europe (OSCE)—acknowledge the importance of religion within European history and culture and give special recognition to freedom of thought, conscience, and religion. As has been argued elsewhere, the attitude of both the EU and the CoE to ‘religion’ is characterized by seven principles—the value of religion and of non-religion; subsidiarity; religious freedom; religious equality and non-discrimination; the autonomy of religious associations; cooperation with religion; and the special protection of religion by means of privileges and exemptions—principles that may be induced from their laws and other regulatory instruments. In doing so, they seek to maintain a balance between Europe’s religious, humanist, and cultural elements. How that balance and recognition operate in practice, however, is far from clear-cut and is highly sensitive to individual circumstances.


Author(s):  
Kreuschitz Viktor ◽  
Nehl Hanns Peter

This concluding chapter explores EU's anti-subsidy instruments, which are designed to address subsidization by other WTO members. After a hesitant start, the EU since 1995 has progressively used the AS instrument to act against subsidization by third-country governments. While initially focusing on relatively clear-cut export subsidies, over time the EU has more and more also countervailed domestic subsidy programmes. This is clearest in the AS cases initiated against China during the past five years, where the majority of the countervailed programmes have consisted of domestic subsidies. In this context, it is important to note that the findings of specificity reached by the EU in cases concerning China are largely based on the use of facts available, resulting from the imposition of very high burdens of proof on the Chinese government that domestic subsidies in fact are not specific.


2021 ◽  
pp. 180-223
Author(s):  
Richard Whish ◽  
David Bailey

This chapter discusses the main features of Article 102 of the Treaty of Functioning of the European Union (TFEU), which is concerned with the abusive conduct of dominant firms. It begins by discussing the meaning of ‘undertaking’ and ‘effect on trade between Member States’ in the context of Article 102. It then considers what is meant by a dominant position and looks at the requirement that any dominant position must be held in a substantial part of the internal market. Thereafter it discusses some general considerations relevant to the concept of abuse of dominance, followed by an explanation of what is meant by ‘exploitative’, ‘exclusionary’ and ‘single market’ abuses. It then discusses possible defences to allegations of abuse, and concludes by considering the consequences of infringing Article 102.


Author(s):  
Richard Whish ◽  
David Bailey

This chapter discusses the main features of Article 102 of the Treaty on the Functioning of the European Union (TFEU), which is concerned with the abusive conduct of dominant firms. It begins by introducing the European Commission’s Guidance on the Commission’s enforcement priorities in applying Article [102 TFEU] to abusive exclusionary conduct by dominant undertakings. It then discusses the concept of undertaking, the requirement of an effect on trade between Member States, the concept of a dominant position and the requirement that any dominant position must be held in a substantial part of the internal market. The chapter also considers the meaning of abuse of a dominant position, which is a complex and controversial issue. A discussion of the defences to allegations of abuse is followed by a brief look at the consequences of infringing Article 102.


Author(s):  
Richard Whish ◽  
David Bailey

This chapter examines Article 101(3) of the Treaty on the Functioning of the European Union (TFEU). Article 101(3) provides a ‘legal exception’ to the prohibition in Article 101(1) by providing that it may be declared inapplicable in respect of agreements, decisions or concerted practices, or of categories of agreements, decisions or concerted practices, that satisfy four conditions. After discussing the burden and standard of proof under Article 101(3) and the application of that provision to agreements, including restrictions of competition by object, this chapter discusses the four conditions in Article 101(3). It then considers the implications of Regulation 1/2003 for undertakings and their professional advisers, and in particular their need to ‘self-assess’ the application of Article 101(3) to agreements. The final section of this chapter describes the system of so-called ‘block exemptions’.


2012 ◽  
Vol 3 (1) ◽  
pp. 72-80
Author(s):  
Aude Mahy

The Rapid Alert System for Food and Feed (the socalled ‘RASFF’) is at the heart of food risk management within the European Union. It aims at providing authorities with an effective tool for exchanging information on measures taken to ensure food safety. It was created in 2002 by the General Food Law Regulation to help Member States to coordinate their food safety actions. Nearly ten years later, the adoption of Regulation 16/2011 of 10 January 2011, laying down implementing measures for the RASFF, intends to clarify the specific conditions and procedures applicable to the transmission of notifications through this tool, thus providing more legal certainty in the system.


2015 ◽  
Vol 17 (2-3) ◽  
pp. 184-209 ◽  
Author(s):  
Jan Schneider ◽  
Bernd Parusel

Political actors in the European Union and in the eu member states have arrived to maintain that managed circular migration can generate benefits both for the destination countries and for the countries of origin of the migrants. Despite the fact that Germany so far has barely engaged in fostering circular migration through distinct programmes, a not inconsiderable share of foreigners from third countries living in Germany today can be viewed as circular migrants. This paper takes an inventory of the extent and characteristics of such spontaneous back-and-forth cross border movements by providing a specific, clear-cut definition for circular migration and thus analysing stock data on third country nationals residing in Germany. Furthermore, we scrutinise the German legal framework with a view to its propensity to encourage patterns of circular migration.


World Science ◽  
2020 ◽  
Vol 2 (1(53)) ◽  
pp. 22-27
Author(s):  
Paata Phutkaradze

This article points out the aim and purpose of the competition law in the European Union. Competition law is one of the most crucial and essential part of law that has to be implemented properly to support and ensure smooth functioning of the economy in the state. At the same time, brief explanation of the most anticompetitive agreements such as called “Cartel Agreements” are being described in the article. It is worth to point out the most important and restrictive types of agreements in details that can be seen on the market and within the European Union, that definitely needs special attention by the relevant competition authorities of the Member States.


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