The abuse of dominance is any abuse by one or more undertakings of a dominant position they hold within the internal market or in a substantial part of it, which may affect trade between member states, and which is prohibited under article 102 of TFEU, as incompatible with the Internal Market.
An undertaking is considered to be in a dominant position within a market when it has a significant market share (position of strength) and is able to evade normal competition on it. The dominant position itself is not illegal; however the abuse of this dominant position (predatory pricing, discrimination of commercial partners) is prohibited.
Competition Act Appeals—practice and procedure in the CAT This Practice Note explains the key procedural stages in bringing or defending an appeal under section 46 or 47 of the Competition Act 1998 before the Competition Appeal Tribunal (CAT or the Tribunal). Sections 46 and 47 of the Competition Act 1998 enable appeals to be brought against decisions of the Competition and Markets Authority (CMA), as well as other sectoral regulators exercising concurrent competition law powers (see UK sector regulation and the concurrency regime — Concurrent enforcement of competition law). Section 46 governs the types of CMA decisions that can be appealed to the CAT by addressees of that decision. Decisions that are appealable under section 46 include any decision of the CMA (or a sectoral regulator with concurrent competition powers) that there has been infringement of the prohibition on restrictive agreements or the prohibition on abuse of dominance, as well as decisions as to the imposition of any penalty or any decision to release or not release commitments. Section 47 relates to third party appeals. Under section 47(1) and (2), various decisions of the CMA (or a sectoral regulator with concurrent competition powers) may be appealed by third parties who have a ‘sufficient interest’ in that decision. The same procedure applies to all appeals regardless of whether
Intellectual property and antitrust—Mexico—Q&A guide This Practice Note contains a jurisdiction-specific Q&A guide to intellectual property and antitrust in Mexico published as part of the Lexology Getting the Deal Through series by Law Business Research (published: February 2021). Authors: Calderón & De La Sierra—Alejandro Staines ; Carlos Perez 1. Under what statutes, regulations or case law are intellectual property rights granted? Are there restrictions on how IP rights may be enforced, licensed or otherwise transferred? Do the rights exceed the minimum required by the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs)? The Federal Law for the Protection of Industrial Property in México, which is to become effective as from 5 November 2020 together with the Federal Copyright Law constitute the fundamental sources of Intellectual Property in México. Bear in mind that the Mexican legal system is supported on Civil Law (Roman Law) and, as such, the primary source of IP rights is the law while judicial precedents and jurisprudence will be restricted to interpret the law. On procedural aspects, the Federal Code of Civil Procedure and the Federal Law of Administrative Procedure will also be applicable in IP matters. Restrictions on enforcement, licensing and transfer of IP rights in México meet applicable rules contained in TRIPS. The only exceptions on the transfer of IP assets could result from Competition Law. 2. Which authorities are responsible
Pricing—competition law considerations STOP PRESS—On 10 May 2022, the Commission adopted a new Vertical Block Exemption Regulation (Commission Regulation 2022/720) (EU VBER). The new EU VBER replaces the previous Regulation on 1 June 2022. This Practice Note will be updated shortly to reflect the new laws. STOP PRESS—On 9 May 2022, the UK Government laid before Parliament The Competition Act 1998 (Vertical Agreements Block Exemption) Order 2022 (UK VABEO). The new UK VABEO replaces the Retained Vertical Agreements Block Exemption on 1 June 2022. This Practice Note will be updated shortly to reflect the new laws. Types of pricing conduct Broadly speaking, EU and UK competition law focuses on two categories of pricing conduct: • agreements and/or concerted practices focused on price, and • pricing policies implemented by 'dominant' undertakings. Agreements and concerted practices • between two or more undertakings relating to the level at which price is set or otherwise coordinated (directly or indirectly through contractual mechanisms, undocumented conduct and/or information exchanges) • such 'price restrictions' (as per vertical distribution/resale agreements, price parity arrangements, horizontal cooperative arrangements and cartel or cartel-like activity) are mainly an Article 101(1) TFEU concern (see The prohibition on restrictive agreements) • coordination on price (whether in a horizontal or vertical context) is generally considered illegitimate—it being one of the most troublesome kinds of restrictions insofar as it goes against the very essence of competition
CAT procedure for competition claims The Competition Appeal Tribunal (CAT) is a specialist tribunal with the jurisdiction to hear competition damages actions, both stand-alone actions and follow-on actions (ie claims for damages which rely on a finding of infringement in a decision), and collective actions, both 'opt-in' and 'opt-out'. Under section 15 of the Enterprise Act 2002, the CAT is required to make rules with respect to proceedings before it; the current rules are the Competition Appeal Tribunal Rules 2015 (the CAT Rules), supported by the CAT's guide to proceedings. While stated to be based on the general philosophy of the Civil Procedure Rules (CPR), the CAT Rules are distinct and the CPR do not apply, save where specifically adopted under the CAT Rules or in certain circumstances in which they have been applied in practice where no express provision is made under the CAT Rules. A number of changes to the CAT's procedure for damages claims were introduced by the Consumer Rights Act 2015 (CRA 2015) and the 2015 CAT Rules, both of which came into force on 1 October 2015. The changes introduced include: • widening the jurisdiction of the CAT to include stand-alone actions for claims arising on or after 1 October 2015 as well as follow-on actions • changes to limitation, so that limitation periods for
Distribution and agency—India—Q&A guide This Practice Note contains a jurisdiction-specific Q&A guide to distribution and agency in India published as part of the Lexology Getting the Deal Through series by Law Business Research (published: April 2022). Authors: G&W Legal—Srijoy Das; Anup Kumar 1. May a foreign supplier establish its own entity to import and distribute its products in your jurisdiction? Yes, a foreign supplier can establish an entity in India for import and distribution, subject to compliance with the foreign exchange control regulations, namely the Foreign Exchange Management Act 1991 and accompanying regulations and the Foreign Direct Investment Policy (the FDI Policy), which is issued from time to time by the government of India. The FDI Policy prescribes, among other things, the types of business entities that may be established by a foreign party, the cap on foreign investments and the minimum investments that should be made by foreign parties. Foreign suppliers can acquire up to a 100 per cent stake in an Indian entity engaged in a wholesale cash-and-carry business, single-brand retail trading (SBRT) or an e-commerce marketplace platform business. However, foreign parties can only acquire up to a 51 per cent stake, with government approval, in an Indian entity engaged in multi-brand retail trading (MBRT). The FDI Policy also prescribes several other compliance obligations for Indian entities with foreign ownership engaged in SBRT, MBRT, a wholesale cash-and-carry
Royal Mail plc v Ofcom & Anor (Court of Appeal) [Archived] CASE HUB ARCHIVED—this archived case hub reflects the position at the date of the judgment of 07/05/2021; it is no longer maintained. See further, timeline Case facts Outline An appeal against the CAT’s ruling which upheld Ofcom’s decision that Royal Mail infringed the Chapter II prohibition under the Competition Act 1998 and Article 102 TFEU by discriminating against its only competitor (Whistl) in relation to the supply of bulk mail services in the UK. Latest developments On 7 May 2021, the Court of Appeal issues its judgment in which it dismissed the appeal in its entirety. The Court of Appeal held that the CAT: (i) did not err in finding that it was not necessary to conduct an as-efficient-competitior test (the AEC test) in all cases, and that the application of the AEC test in this case was problematic. This case did not fall easily into any of the categories of abusive pricing in which an AEC test had been considered, in case law , to be appropriate; and (ii) was entitled to find that the AEC test relied upon by Royal Mail was not persuasive in showing that the differential pricing was not anti-competitive. The CAT did not err in
Intellectual property and antitrust—Kazakhstan—Q&A guide This Practice Note contains a jurisdiction-specific Q&A guide to intellectual property and antitrust in Kazakhstan published as part of the Lexology Getting the Deal Through series by Law Business Research (published: February 2021). Authors: Baker McKenzie—Nurgul B. Abdreyeva; Andrei Yorsh 1. Under what statutes, regulations or case law are intellectual property rights granted? Are there restrictions on how IP rights may be enforced, licensed or otherwise transferred? Do the rights exceed the minimum required by the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs)? Intellectual property rights in Kazakhstan are granted, regulated and protected under a number of statutes. Principle rules in the area of IP rights are summarised in the Civil Code of the Republic of Kazakhstan. Other main laws in this area include the Law On Copyrights and Related Rights dated 10 June 1996, the Law On Trademarks, Service Marks and Appellations of the Origin of Goods dated 26 July 1999, the Patent Law dated 16 July 1999, the Law On the Legal Protection of the Topologies of Integrated Circuits dated 29 June 2001, and the Law On the Protection of Selection Achievements, dated 13 July 1999. Liability for breach of IP rights is also established in the Administrative Code and Criminal Code of Kazakhstan. Republic of Kazakhstan is a party to main international treaties in the area of IP
Competition compliance—Belgium—Q&A guide This Practice Note contains a jurisdiction-specific Q&A guide to competition compliance in Belgium published as part of the Lexology Getting the Deal Through series by Law Business Research (published: April 2022). Authors: Fieldfisher—Tom Pick; Iseult Derème 1. What key legislation governs competition in your jurisdiction? The key legislation for competition is the Law of 2 May 2019, that reformed the Belgian competition rules included in Book IV of the Code of Economic Law (CEL) to improve enforcement and to enhance the powers conferred to the Belgian Competition Authority (BCA). In addition, the Law of 4 April 2019 also reformed the CEL to include the abuse of economic dependence, abusive clauses and unfair market practices between undertakings. Finally, a number of royal decrees and implementing legislation clarify and supplement the CEL. The BCA also adopts non-binding guidance on several topics (leniency, fines, compliance, etc), that help undertakings and businesses assess and understand the Belgian competition rules. 2. Which authorities are charged with enforcing competition law in your jurisdiction and what is the extent of their powers? Two main bodies are responsible for enforcing competition law: the BCA and national courts. The BCA, previously an administrative court, became an independent administrative authority in 2013. The BCA is responsible for the investigation, prosecution and decision-making in the area of anticompetitive practices. The main organs of the BCA are the auditor, responsible
Private actions and access to information (relating to a regulatory investigation) Private actions in English courts alleging the infringement of competition laws often arise in parallel to investigations by national and/or European competition authorities even if not strictly following-on from the same. Claimants commonly seek disclosure of documents and/or information provided to the competition authorities, or created by them ('regulatory material'), and defendants strongly resist most such disclosure. Recent developments at the EU level, including the passage of the Damages Directive, implemented in the UK in The Claims in respect of Loss or Damage arising from Competition Infringements (Competition Act 1998 and Other Enactments (Amendment)) Regulations 2017 (SI 2017/385) (the Regulations), appear to leave little scope for claimants to get hold of regulatory materials for use in damages claims in the future. While this is not ideal for claimants, nor is it a disaster. Claimants have access to a lot of valuable material through the normal disclosure practice and regulatory material will not necessarily add a lot more. See further, UK damages actions, Private actions and access to information—checklist. What do we mean by 'regulatory material'? This section briefly discusses the different types of regulatory material that may be sought and how they may be relevant to a private enforcement action. Infringement decision A UK or European competition authority’s decision is binding on a UK
Competition law and the EEA The European Free Trade Association (EFTA) is a trade organisation established in 1960 by Denmark, Norway, Portugal, Switzerland, Sweden, UK and Austria. The EFTA was created to function as an intergovernmental organisation for the promotion of free trade and economic integration between its Convention States, as an alternative to the newly established European Economic Community (EEC), which subsequently developed into the European Community (EC) and then the European Union (EU). Finland joined in 1961, Iceland in 1970 and Liechtenstein in 1991. By that time Denmark, Portugal and the UK had left the EFTA to join the EEC. In 1989, the Member States of the EC and EFTA agreed to negotiate a free trade agreement establishing 'a single market' encompassing the EC (now EU) and EFTA States. The European Economic Area (EEA) Agreement entered into force on 1 January 1994. At that time, the EFTA consisted of Austria, Finland, Iceland, Liechtenstein, Norway, Sweden and Switzerland. Switzerland did not sign the EEA Agreement, and Austria, Finland and Sweden later left EFTA to join the EU. Today the 31 contracting parties to the EEA Agreement comprise all 27 EU Member States, the EU itself and the three EFTA Countries Iceland, Liechtenstein and Norway. When referring to the 'EFTA Member States' below, this includes Iceland, Liechtenstein and Norway, but not Switzerland. The EEA Agreement extends the EU
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Message from CEO on introduction of competition law compliance policy From [[insert job title], ][insert name] Competing fairly benefits both businesses and consumers. Competition shows companies where they need to improve and encourages organisations to strive for greater efficiency, become more innovative, more productive, and ultimately be better businesses. Competition law is designed to protect businesses and consumers from anti-competitive behaviour, and safeguard effective competition. All businesses must comply with competition law and there can be serious consequences for businesses and individuals, including directors, for non-compliance, including heavy fines, prison sentences, director disqualifications and reputational damage. What is competition law compliance? Competition law is designed to protect businesses and consumers from anti-competitive behaviour, and safeguard effective competition in the markets in which they operate. All businesses must comply with competition law and there can be serious consequences for businesses and individuals for non-compliance, including heavy fines, prison sentences, director disqualifications and reputational damage. How does this affect us? Competition law may become an issue for [insert organisation name] in three main contexts: • cartel activity • other potentially anti-competitive agreements • abuse of a dominant position Cartel activity Cartels are the most serious types of anti-competitive agreements, where two or more businesses agree not to compete with each other. Cartels deprive consumers and other businesses of the benefits of fair competition and, in the long run, undermine competitiveness in
Competition law compliance cheat sheet for staff What is competition law? Competition benefits both businesses and consumers. It shows companies where they need to improve and encourages organisations to strive for greater efficiency, become more innovative, more productive, and ultimately be better businesses.Competition law is designed to protect businesses and consumers from anti-competitive behaviour, and safeguard effective competition.All businesses must comply with competition law and there can be serious consequences for businesses and individuals, including directors, for non-compliance. These can include heavy fines, prison sentences, director disqualifications and reputational damage. When is it an issue? Competition law may become an issue for organisations in three main contexts:cartels—these are usually based on horizontal arrangements where two or more businesses agree, whether in writing or otherwise, not to compete with each other. Cartels are the most serious type of anti-competitive agreements. They include agreements to fix prices, engage in bid-rigging, limit production and share customers or markets. A cartel may also arise where there is a unilateral exchange of information or when businesses disclose or exchange commercially-sensitive information. In this context, the key issue is whether the disclosure or exchange of information substantially reduces uncertainty around the company’s future commercial behaviour in the marketplace. Information sharing can start easily and seem relatively harmless at first and this makes cartels a significant risk: we
Competition law compliance—post-training assessment questions How to use this test These questions are designed to test your understanding after your attendance at our training on competition law compliance. After you have completed this test, please return it to [insert name]. General Name of person completing test [Insert name] Role [Insert role] Date [Insert date] Multiple choice questions Circle the correct answer. Question Multiple choice answers 1. Competition law protects business and consumers from anti-competitive behaviour and safeguards for effective competition (a) True(b) False 2. What are the consequences of breaching competition law? (a) Heavy fines, prison sentences, director disqualifications, and reputational damage(b) A prison sentence for the individual committing the breach(c) A heavy fine for the organisation involved 3. What are the three main contexts in which competition law may become an issue for organisations? (a) Cartels
Competition law compliance—warning signs for staff Behaviour red flags are situations which should cause you to ask questions. Although difficult to detect, there are many circumstances that signal the existence of anti-competitive behaviour. This awareness tool features possible competition law warning signs, flags, characteristics or behaviours to watch out for. Even just one of these red flags may be a sign of anti-competitive behaviour. 1 Cartel behaviour Any attempt to fix prices; Any attempt to engage in bid-rigging; Any attempt to limit production; Any attempt to share customers or markets; Any attempt to standardise products (while product standardisation can be pro-competitive, it can in some instances also be classified as anti-competitive if, for example, the standards are only available to certain competitors); Attendance of
Competition law compliance—post-training assessment answers Question Correct answer 1. Competition law protects business and consumers from anti-competitive behaviour and safeguards for effective competition (a) True 2. What are the consequences of breaching competition law? (a) There can be serious consequences for businesses and individuals for non-compliance including heavy fines, prison sentences, director disqualifications, and, of course, reputational damage 3. What are the three main contexts in which competition law may become an issue for
Competition law compliance policy 1 Introduction 1.1 Competition benefits both businesses and consumers. It shows companies where they need to improve; encourages organisations to strive for greater efficiency, become more innovative, more productive, and ultimately be better businesses. 1.2 We run our business[es] with integrity and in an honest and ethical manner. All of us must work together to ensure [it OR they] remain[s] strictly within the boundaries of competition law. 1.3 This policy is a crucial element of that effort. It has the full support of the [insert, eg board]. It sets out the steps all of us must take to comply with competition law in our business. 2 What is competition law and how does it affect us? 2.1 Competition law is designed to protect businesses and consumers from anti-competitive behaviour, and safeguard effective competition. All businesses must comply with competition law and there can be serious consequences for businesses and individuals, including directors, for non-compliance. These can include heavy fines, prison sentences, director disqualifications and reputational damage. 2.2 Enforcement examples include [insert specific enforcement examples from the industry in which your business is active]. 2.3 [Competition law applies to everyone: to individuals and to small businesses as well as large ones; it applies in online markets as well as sales through physical outlets.] 3 Our approach 3.1 [Insert organisation name] is committed to complying with competition law. 3.2 We conduct our business[es] to
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Under standard terms & conditions of sale of goods, where the purchaser is a retailer or wholesaler, can you prohibit resale of goods through third party platforms such as Amazon? This Q&A relates to competition law restrictions applicable between businesses in the UK. Practice Note: Business to business e-commerce—legal issues explains that those involved in e-commerce need to ensure that their activities comply with applicable competition and anti-trust laws throughout the supply chain in all relevant jurisdictions. You may find it helpful to refer to Practice Notes: • Competition law and the online sector •
In the context of an English law agreement what is a ‘preferred supplier’? Might there be any regulatory issues to consider in connection with the appointment of a ‘preferred supplier’? What is the meaning of ‘preferred supplier’? The term ‘preferred supplier’ is often used in business, however it has no definitive or clear meaning in English law. Differing views of the meaning of the term are possible. For example the phrase might be intended to mean that the supplier would fall into one or more of the following (often mutually conflicting) categories or have some other meaning: • it may not be offered any work but is on an ‘approved’ list and so does not have to repeat certain retendering exercises • if offered work, it will be offered terms of trade that are no less favourable than those offered to any other supplier • it will always be offered certain work unless a competing supplier offers better terms • it will be offered a minimum volume of work See, for example, ProForce Recruit Ltd v The Rugby Group Ltd, Dunblane Property Ltd v Motorcare Holdings Ltd, 18970: Lindsay Cars Limited and Triage Services Ltd v Revenue and Customs Commissioners. The Court of Appeal decision in ProForce highlighted that the expression ‘preferred supplier’ has no clear legal meaning. In that decision Mummery LJ stated ‘The expression does not, in my view, have
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This week's edition of Competition weekly highlights includes from an EU perspective: (1) the General Court’s judgment upholding Qualcomm’s appeal against the Commission’s 2018 decision which fined Qualcomm €997m for abusing its dominant position in the LTE chipsets market, and (2) AG Rantos’ opinion in relation to a national reference from Latvia concerning whether the obligation imposed on a public operator to purchase renewable energy at a higher price involves unlawful State aid. In addition, this weeks highlights also includes a number of UK developments, namely: (1) the CAT’s judgment which upheld most of the CMA’s decision to prohibit the Meta/Giphy merger, but finding procedural errors, (2) publication by the CMA of its final report on its market study into UK mobile ecosystems, (3) the Court of Appeal ruling upholding the High Court’s judgment that the smart card chips damages claim is time-barred, (4) the CMA’s decision to refer the Cérélia/Jus-Rol merger for an in-depth phase 2 investigation, (5) the Business Secretary’s letter to the CMA calling on it to conduct an urgent review of the UK’s fuel market, and (6) the CMA’s announcement that it has secured an offer of commitments from P&O Ferries and DFDS in relation to their capacity sharing agreement.
This week's edition of EU Law weekly highlights includes the EU taking legal action against the UK after the publication of the Northern Ireland Protocol Bill, the European Parliament calling on the European Council to start revision of EU Treaties and MEPs objecting to the European Commission’s plan to include gas and nuclear activities as environmentally sustainable under the Taxonomy Regulation. The highlights further include MEPs adopting the position on vehicle emissions, carbon sinks and effort sharing as well as MEPs rejecting proposed revisions to EU ETS, CBAM and Social Climate Fund as part of the Fit for 55 initiative and the Council of the EU adopting its position on the revised EU consumer credit directive.
A round-up of EU competition law developments, including (amongst other things) a judgment from the General Court which upheld Qualcomm’s appeal against the Commission’s 2018 decision fining Qualcomm for abusing its dominant position in the LTE chipsets market.
This week's edition of Competition weekly highlights includes a number of UK developments, including the CMA’s decision to launch to a second Chapter II investigation into Google’s ad tech practices and a Supreme Court’s judgment which reinstates the CAT’s judgment awarding Flynn and Pfizer’s costs in connection with their successful appeals against the CMA’s decision that they charged excessive prices for phenytoin capsules.
A round-up of UK competition law developments including (amongst other things) the CMA’s decision to launch a second Chapter II investigation into Google’s practices in the digital advertising technology market.
A round-up of EU competition law developments, including (amongst other things) the AG’s opinion regarding the application of disclosure under the Damages Directive.
A round-up of UK competition law developments, including (amongst other things) the CMA decision (1) to unconditionally clear Sony’s acquisition of AWAL, (2) that the NortonLifeLock/Avast merger meets the test for reference to phase 2.
A round-up of UK competition law developments including (amongst other things) the CMA’s decision to accept commitments to address competition concerns regarding long-term exclusive arrangements for the supply of electric vehicle chargepoints on or near motorways.
This week's edition of Competition weekly highlights includes a number of UK developments, namely: (1) the CMA’s decision to impose fines on JD Sports and Footasylum for breaching an IEO and information request in relation to the CMA’s remitted phase 2 investigation in the JD Sports Fashion plc/Footasylum plc merger, (2) the CMA’s decision to accept modified commitments from Google in order to address its abuse of dominance concerns in relation to Google’s proposals to remove third party cookies and other functionalities from its Chrome browser, and (3) the CMA’s decision to provisionally clear Sony’s Music Entertainment’s completed acquisition of AWAL Kobalt Neighbouring rights businesses from Kobalt Music Group Limited. The highlights also include a summary of the CAT’s decision to award Achilles £3.8m in damages in a private action against National Rail, as well as News Analysis discussing what to expect of the UK’s subsidy control regime in 2022.
A round-up of EU competition law developments, including (amongst other things) the latest State aid developments.
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21 Abuse of a dominant positionWhen one or more of the participants in a joint venture has a dominant position on a relevant EU market, implementation of its joint venture’s agreement may constitute an abuse of that dominant position for the purpose of Article 102 of the Treaty on the Functioning of the European Union (formerly Article 82 of the EC Treaty2)1. When a participant’s dominant position is on a UK market, implementation of its joint venture’s agreement may constitute an abuse of that dominant position for the purpose of the Competition Act 1998 Chapter II
The purpose of the Competition Act 1998 (‘the 1998 Act’) was to bring UK competition law into line with EU competition law. This purpose is emphasised by the so-called ‘consistency principle’1, which states that the court should, so far as is possible, treat questions under the 1998 Act in a way that is consistent with how corresponding questions are treated under EU law2. As a result, the jurisprudence of the European Court of Justice is highly relevant to interpreting the 1998
An undertaking generally is dominant in a relevant market when its economic strength enables it to prevent effective competition from being maintained, by giving it power to behave to an appreciable extent independently of its competitors, customers and, ultimately, of consumers1.In addition, the power to exclude effective competition may involve the ability to eliminate or seriously weaken existing competition or to prevent potential competitors from entering the market2.
There is nothing objectionable per se about an undertaking occupying a dominant position in a market; this, after all, is the reward of success. It is what the undertaking does with that position which is the significant issue.TFEU Article 102 gives some guidance as to the meaning of abusive behaviour by providing a list of activities that fall within the ambit of the article. This list is not exhaustive, however, and case law has elaborated on it to a significant extent. Prohibited abuses are often divided into two categories: exploitative
62 Abuses which ‘may affect trade between member states’In order to fall within the EC prohibition on abuse of a dominant position(TFEU Article 102), an undertaking’s behaviour has to be such that it ‘may affect trade between member states’. This is the same requirement as forms part of the EC prohibition on anti-competitive agreements (TFEU Article 101(1)), and it is not usually difficult to prove. The basic principle was set out in the case of Istituto Chemioterapico Italiano SpA v EC Commission1:‘When an undertaking in a dominant position within the common market abuses its position in
The Competition Act 1998 contains a prohibition on abuse of a dominant position (the ‘Chapter II prohibition’) which is essentially equivalent to TFEU Article 1021. The difference is that the TFEU refers to the effect on trade ‘between Member States’, but the 1998 Act refers to the effect on trade ‘within the United Kingdom’2. Another difference is that TFEU Article 102 requires the dominant position to be within the European Union or a substantial part of it, but the Chapter II
66 The effect of contravening the Chapter II prohibitionThird parties that have been injured by an undertaking’s abuse of its dominant position may be able to bring a claim for damages or an injunction, before the court1.When an undertaking is found to have abused its dominant position, the Competition and Markets Authority (‘CMA’) may impose a fine up to 10% of its worldwide turnover, usually the relevant turnover for the business year before the date of the decision2.An undertaking has limited immunity from fines imposed for abuse of a dominant position if its conduct is conduct of minor significance.
67 Avoiding liability under the Chapter II prohibitionThere are far fewer ways of avoiding liability under the Competition Act 1998 prohibition on abuse of a dominant position (‘the Chapter II prohibition’) than there are under the Competition Act 1998 prohibition on anti-competitive agreements1. The de minimis rule is obviously irrelevant in such a situation. In addition, there are no relevant exemptions, block or parallel. The only ways to avoid liability are to prove that the undertaking does not fall within the Chapter II prohibition or to prove that it does fall within one of the excluded cases
Abuse of dominance is referenced 8 in Encyclopaedia of Forms and Precedents
69. Reports on PI references. Where the Secretary of State makes a restricted PI reference or a full PI reference1 the CMA2 must prepare a report on the reference and take the relevant action in relation to it3 within the permitted period4. The report must, in particular, contain: (1) the decisions of the CMA on the questions which it is required to answer5; (2) its reasons for its decisions6; (3) such information as the CMA considers appropriate for facilitating a proper understanding of those questions and of its reasons for its decisions7; and (4) in the
71. Time limits for investigations and reports. The CMA1 must prepare its report2 and publish it3 or (as the case may be) give it to the Secretary of State4 within the period of 18 months beginning with the 'relevant date', that is: (1) in the case of a report in relation to a restricted PI reference or to a full PI reference which specifies that the Secretary of State does not propose to appoint a public interest expert, the date of the reference5; and (2) in the case of a report in relation to a full PI
72. Restrictions where public interest considerations not finalised. The CMA1 must terminate its investigation2 if: (1) the intervention notice concerned mentions a public interest consideration which was not finalised on the giving of that notice or public interest considerations which, at that time, were not finalised3; (2) no other public interest consideration is mentioned in the notice4; (3) at least 24 weeks have elapsed since the giving of the notice5; and (4) the public interest consideration mentioned in the notice has not been finalised within that period of 24 weeks or (as the case may be) none
68. Questions to be decided on a full PI reference. Where the Secretary of State makes a full PI reference1 the CMA2 must: (1) on an ordinary reference3, decide whether any feature, or combination of features, of each relevant market4 prevents, restricts or distorts competition in connection with the supply or acquisition of any goods or services5 or services in the United Kingdom or a part of the United Kingdom6; and (2) on a cross-market reference, decide in relation to each feature and each combination of the features specified in the reference, whether the feature or combination
70. Publication of reports on PI references. Where a report is prepared in respect of a restricted PI reference1 the CMA must publish the report if it contains: (1) the decision of the CMA that there is no adverse effect on competition2; or (2) the decisions of the CMA that there is one or more than one adverse effect on competition but that no action should be taken by it3.Where the report contains the decisions of the CMA that there is one or more than one adverse effect on competition and that action should be taken by
Abuse of dominance is referenced 5 in Halsbury's Laws of England
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