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Revision Notes Eu & Uk Competition Part 2 Notes

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A more recent version of these Revision Notes Eu & Uk Competition Part 2 notes – written by Oxford students – is available here.

The following is a more accessble plain text extract of the PDF sample above, taken from our Competition Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Overview of UK Competition

1. Legislation

* The Competition Act 1998 Chapter I (like Art 101 TFEU)

* The Competition Act 1998 Chapter II

* The Enterprise Act
* Market investigation references
* Cartel offence
* Director disqualification orders
* Super-complaints

2. Institutions

* competition Commission.

* OFT

* SFO

* Sector Regulators

* CAT

* National Courts

* Reform?

The Chapter 1 Prohibition

1. Scope

*

S 2(1) of the Competition Act 1998 Subject to s 3, agreements between undertakings, decisions by associations of undertakings or concerted practices which a. may affect trade within he UK, and b. have as their object or effect the prevention, restriction or distortion of competition within the UK, c. are prohibited unless they are exempt in accordance with he provisions of this Part.

2. Interpretative Consistency

*

S 60 of the CA 1998 sets out 'Governing Principles'
* "...so far as possible...interpret corresponding questions in a manner which is consistent with Community law" and "...take Commission statements or decisions" into consideration.

3. Elements needed

*

"Undertakings"
* "every entity engaged in econ activity" - Hofner:
# Supply of goods or services

* Bettercare: were under stat duty to buy beds, was econ activity as care home residents paid North & West to sleep in beds.

* FENIN: Spanish health services main purchaser of certain drugs, pay 300 days after purchase, they are not Undertakings because as court said "it is the activity of offering goods/services, not the purchasing, which makes you economically active.
# Potential to make profits (could it be performed by private undertaking?)

*

"Agreements" or "concerted practices"
* "...agreement...is..concurrence of wills..the form of it being manifested is unimportant" (Bayer AG)
* concerted practice is...without having reached proper agreement, knowingly substitutes practical cooperation between them for risks of competition" (ICI v Commission)

# Common intention?

* Dashwood: No says Suiker Unie

* JJB Sports: Yes, but can take different forms
# Argos and Littlewoods v OFT: Multiple vertical agreements can be seen as concerted practice if they are related. (Umbro made sure 49,99)

*

"Prevention, restriction, or distortion of competition"
* S 2(2) contains illustrative list
* Restriction
# Arriva plc and FirstGroup plc: sharing of market
# British Horseracing Board: Para 151 shows how they look to EU Law here

*

Appreciable
* OFT 401 Para 2.15: Will not be appreciable if combined markets share less than 10%, or individual less than 15% but if you do shit like price fixing or market sharing, you get caught, no matter how appreciable.

*

Effect on Trade within UK
* NO deminis: Aberdeen Journals

4. Exclusion from Prohibition

*

*

Section 3 CA 1998: Mergers, competition scrutiny under other regimes, planning obligations, services of general economic interest. Section 50 CA 1998: Vertical* and land agreement

5. Exemption from the Prohibition.

*

*

Block Exemption

* OFT 439: Idea that you buy one ticket but can get any train to london. Because we like integrated transport system, we allow this exemption! Makes sense.

* OFT 851: Distribution of magazines and newspapers, another bizarre market where speed is of the essence. Because if todays newspaper not made it to paper shop by morning, no market for the goods.

* OFT 401, para 5.15.-5.16
* Assume that EU law is applicable, but even if EU law does not apply, can always rely on exemption. And that is provide by parallel exemption scheme. S 9 CA 1998
* OFT 442: we can just use the 103 guidance that Commission produced and use that to interpret how s 9 exemption would apply in the UK context.

6. Consequences of Infringement.

*

Voidness
* S 2(4) "Any agreement/decision that falls under 2(1) is void"
* S 60: would think that 'whole agreement' void, but probably just offending clause.
* Gibbs Mew v Gemmel: If breaches 101 not only void, but also illegal, this is important because if illegal contract cannot recover damages in national law.
* *Courage v Crehan: An absolute bar on recovery would be contrary to rule of effectivness. If illegal, and you have borne sig responsibility for bringing about illegal contract, you have no remedy. This was decided as matter of EU law, but following s 60 also true under UK law.
* Passmore v Morland: Concerned 'transient nullity' where agreement would drift into and outside legality. If illegal over 30% of time, then unenforceable, but not void ab initio.

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