13. Public Enforcement by the Commission and the National Competition Authorities of the Antitrust Provisions

This chapter discusses the public enforcement regime for the application of Articles 101 and 102 under Regulation 1/2003. It explains the system that applied previously under Regulation 17, and the reasons for, and salient features of, the ‘modernisation’ introduced by Regulation 1/2003. The chapter then examines: the complaints procedure; the powers of the Commission, including the investigation and inter partes stages of its procedure; the decisions which the Commission may take, including decisions imposing fines and commitments decisions; judicial review by the EU Courts; the European Competition Network (ECN) and enforcement by national competition authorities, including the changes to be introduced by the ECN+ Directive; and the possibility of sanctions against individuals.. The chapter also considers the application of fundamental rights provisions in EU competition proceedings.

10. Horizontal Cooperation Agreements

This chapter discusses EU competition policy towards horizontal cooperation agreements. It covers joint ventures; the contents of the 2010 Guidelines; the general approach to horizontal cooperation agreements in the Guidelines; information agreements; research and development agreements, including the block emption, Regulation 1217/2010; production agreements, including the block exemption on specialisation agreements, Regulation 1218/2010 ; purchasing agreements; commercialisation agreements; standardisation agreements; and agreements in particular sectors, such as the joint buying or selling of media rights to sports events.

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

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).

2. The Competition Law and Institutions of the European Union

This chapter sketches the history and functions of the EU and its institutions in order to set the EU competition rules in context. It then describes the competition provisions themselves and outlines the way in which the rules are applied and enforced, including the public enforcement of Articles 101 and 102 under Regulation 1/2003, the control of mergers with a European dimension under Regulation 139/2004, public enforcement by the national competition authorities of the Member States, and the role of private enforcement. It discusses the position and powers of the European Commission, particularly the role of the Competition Directorate General (DG Comp); the powers of the EU Courts; the significance of fundamental rights and the general principles of EU law in competition cases; the application of competition rules to particular sectors of the economy; and the application of the EU rules to the EEA.

1. Introduction to Competition Law

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.

15. Mergers

This chapter discusses the regime for controlling mergers which have an ‘EU dimension’ under the European Union Merger Regulation (EUMR). The chapter examines: the purposes of merger control; the history of the EUMR; the scheme of the EUMR and the concept of the ‘one-stop shop’; jurisdiction under the EUMR, including the definition of a ‘concentration’ and what amounts to an ‘EU dimension’; procedure, including Phase I and Phase II proceedings; the substantive appraisal of horizontal, and non-horizontal mergers under the EUMR and the test of significantly impeding effective competition (SIEC); EUMR statistics; appeals; and international issues.

7. Article 102 TFEU: Conduct Which Can Be an Abuse

This chapter discusses the difficult concept of what constitutes an ‘abuse’ of a dominant position for the purposes of Article 102 and whether conduct should be condemned on account of the form it takes or only for its effects. It considers the case law of the EU Courts, the decisional practice of the Commission, and the Commission’s Guidance Paper on enforcement priorities, and the problem of distinguishing competition on the merits from illegimate conduct. The chapter looks at the different classifications of abuse, particularly exclusionary and exploitative abuses; the distinction between form- and effects-based approaches to types of abuse; the leveraging of market power between distinct markets as a theory of harm; the objective justification defence; and general issues in respect of abuses concerning prices, including the ‘as efficient competitor’ test. The chapter then examines the application of Article 102 to various forms of conduct, including: price discrimination; predatory pricing; selective low pricing; margin squeeze; exclusive dealing;; tying and bundling; refusal to supply; self-preferencing; malicious pursuit of legal proceedings; ‘regulatory gaming’; discrimination abuses; unfairly high and low pricing; hindering inter-Member State trade; and more novel claimed abuses within the digital economy.

4. Article 101 TFEU: The Elements

This chapter discusses the text and scheme of Article 101 which prohibits agreements, decisions and concerted practices which restrict competition and may affect trade between Member States. It explains the terms employed in Article 101(1) and how they are interpreted and applied. This entails a discussion of the meaning of ‘undertaking’ and ‘association of undertakings’, including the concepts of ‘economic activities’ and of a ‘single economic entity’; the meaning of ‘agreement’ including the coverage of both horizontal and vertical agreements; the meaning of ‘concerted practice’; the meaning of ‘decisions by associations of undertakings’; the application of Article 101(1) to complex arrangements and single continuous infringements; and the meaning of an appreciable effect on trade between Member States.

14. Private Enforcement

This chapter focuses on the private civil enforcement of EU antitrust rules through claims made by private litigants in the national courts and tribunals of the individual Member States. The discussions cover the principle of direct effect and national procedural autonomy, mechanisms for cooperation between the Commission and national courts, the obligations of national courts when dealing with cases that raise the issue of whether a contract in violation of Article 101 or Article 102 is enforceable and whether, and if so when, damages and injunctions should be available to remedy such violations. It also considers wy historically there was relatively little antitrust litigation in the EU; the relationship between public and private enforcement; the Commission's policy towards private enforcement, the package of measures the Commission has taken to encourage private litigation, especially the 2014 Damages Directive and its likely impact.

9. Horizontal Agreements—Cartels and Collusion

This chapter examines how EU competition law applies both to undertakings operating cartels and to undertakings that tacitly coordinate their behaviour on a market. It starts by looking at the difference between ‘explicit’ and ‘tacit’ collusion in the light of the theory of games and the ‘prisoners’ dilemma’. The chapter then deals with cartels and other agreements akin to cartels, or which may facilitate explicit or tacit collusion on a market. Next, it considers the problem of tacit collusion and whether, in particular, Articles 101 and 102 operate as effective mechanisms for dealing with the oligopoly problem. The chapter also considers other options that EU competition law might offer to deal with tacit collusion, either ex ante or ex post, such as the use of the concept of collective dominance and sector enquiries under Regulation 1/2003, art 17.