Chapter II prohibition

The following Competition practice note provides comprehensive and up to date legal information covering:

  • Chapter II prohibition
  • Brexit
  • Dominant postilion
  • Collective dominance
  • Abuse of dominance
  • Types of abuse—exclusionary abuse
  • Types of abuse—exploitative abuse
  • Other abuses

Chapter II prohibition

In the UK, unilateral or ‘dominant’ firm conduct is governed by section 18 of the Competition Act 1998 (the Competition Act). Section 18(1) of Chapter II of the Competition Act provides that ‘..any conduct on the part of one or more undertakings which amounts to an abuse of a dominant position in a market is prohibited if it may affect trade within the United Kingdom’.

The Chapter II prohibition is modelled closely on Article 102 TFEU, but is to be applied in the UK. Therefore:

  1. the abuse must have at least the possibility of affecting trade within the UK, and

  2. the dominant position must exist within the UK (though the abuse may take place outside the UK).

The ‘UK’ means the UK or any part of it. There is no requirement that the part be ‘substantial’.

Otherwise, the analysis of the applicability of the Chapter II prohibition will be the same as that for Article 102 TFEU:

  1. is there a dominant position? This involves defining the market and assessing the position of the allegedly dominant company in that market, and

  2. is the conduct concerned abusive?

This Practice Note provides a general overview of the application of the Chapter II prohibition, in particular focusing on its constituent elements:

  1. establishing dominance

  2. confirming prima facie restrictive unilateral conduct

Brexit

The UK was part of the EU for almost 50 years. Although

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