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LPC Law Notes Commercial and IP Notes

Competition Law Notes

Updated Competition Law Notes

Commercial and IP Notes

Commercial and IP

Approximately 100 pages

A collection of the best LPC Commercial and IP notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through twenty-nine LPC samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor".

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

Competition Law

Sources:

Arts 101 and 102 TFEU Treaty on Functioning of European Union have direct effect in UK

S.2 (Art 101) and s.18 (Art 102) Competition Act

Horizontal = between two competitors

Vertical = between two non-competitors eg. Supplier and distributer

Art 101(1) and 101(2) horizontal and abuse of dominance

EU competition regime

Domestic competition regime

Does Art 101(1) apply?

  • agreement/decision/concerted practice?

  • Has an object Prevention/restriction/distortion of competition

  • Effect on trade between MS if there is an inter-state effect

Does s.2 apply?

  • agreement/decision/concerted practice?

  • Has as object Prevention/restriction/distortion of competition

  • Effect on trade on UK trade if implemented in UK

Examples of infringement in art. 101(1) (a-e)

  1. price fix - happens in most exam q’s

  2. Limit or control production

  3. Share markets or source supply

  4. Apply dissimilar conds to equivalent trans’s

  5. Make the conclusion subject to acceptance by other parties

 Examples of infringement in s.2 (a-e) same as Art 101(1)(a-e)

Is there an appreciable effect on competition?

Do the NAOMI thresholds apply?

Is there an appreciable effect on competition?

Do the NAOMI thresholds apply?

How to apply NAOMI

  • para 7 market share thresholds

  • If horizontal - aggregate market share must not exceed 10%

  • If vertical - market share of each party taken separately can’t exceed 15% [see below for vertical structure]

  • And in exam say “and in any event” Para 11 Hardcore Restrictions “apply” ...

  • Price fixing [main one]

  • Market/customer sharing

  • Agreements limit sales (markets)

[see below for vertical hardcore restrictions]

Does an Exemption apply?

- EU Block exemption

Does an Exemption apply?

  • UK Block exemption - s.9

  • Parallel exemption (EU) - s.10

Block Exemption Regulations (BER)

Main ones are:

Research and Development BER [only examinable one]

Vertical Agreement BER [see chap 8]

Technology Transfer BER

Specialisation BER

  • only 1 UK Block exemption - w/regards bus tickets so won’t be relevant!

  • Parallel exemption s.10 includes the BERs in domestic law [see left]

Might Art.101(3) assist?

- exercise w/caution as have to self assess

Might s.9 CA assist?

- exercise w/caution as have to self assess

Infringement consequences?

  • fines of up to 10% of worldwide group turnover by Commission or OFT

  • Fines of up to 1% for failure to co-operate w/investigation

  • Injunctions restraining from activities while the investigation takes place

  • Injunctions directing parties to act in a particular way

  • Termination or modification of an ag

  • Commitment to cease infringing behaviour

  • D’or disqualification

  • Adverse publicity

Infringement consequences?

  • same as EU

Exceptions -

(1) Limited immunity from fines s.39-40 ‘small agreement’

  • in relation to infringement of s.2 or 18 CA

  • S.2 infringement - joint turnover of parties must not exceed 20 mill

  • S18 CA infringement - turnover of the undertaking must not exceed 50 mill

Nb. Limited immunity not available if:

  • Arrangement involves price fixing

  • Immunity only relates to fine from OFT

  • Immunity doesn’t apply to Arts 101 or 102

(2) immunity for whistleblowers

Art 102/s.18 - Abuse of dominant position

2 x stage test:

  1. co must be dominant in market

  2. Co must have engaged in conduct that is considered abuse

Exam structure:

Nb. CONCLUDE @ end of each box

Art 101(2)/s.18

What is relevant market [see below]?

  • product market

  • Geographical market

Is the undertaking dominant in that market?

Dominance = the power [of a co] to behave to an appreciable extent independently of its competitors, suppliers and ultimately its consumers

What level of market share establishes dominance?

  • 60-75% prima facie evidence of dominance

  • 50-60% may be dominant, evidence of other factors required

  • 40-50% may be dominant, supporting evidence required

  • Less than 40% - unlikely to constitute dominance

  • Below 30% - dominance is almost inconceivable

Generally below 60% on its own is unlikely to be dominance

Other factors to be considered:

  • barriers to entering market - refers to structural costs or regulations

  • Ability to act independently of competitors, suppliers and customers

  • Holding of key IPRs

  • Access to or ownership of technology not available to competitors

  • Superior distribution systems

Is there abuse that may affect trade in an MS?

Non-exhaustive list in Art 102(a-e) and s.18(a-e) of abuse:

  1. imposing unfair purchase or selling prices [aka price fixing]

  2. Limiting production, markets or technical development to prejudice of customers

  3. Applying dissimilar conditions to equivalent trans’ w/other trading parties, thereby putting them @ a competitive disadvantage

  4. Making the conclusion of contracts subject to acceptance by other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection w/the contracts

Infringement consequences

[see above for Art 101(1)]

Extra marks!!! Discuss s.40 CA ‘small agreements’

What is relevant market?

Product Market

[look @ demand and supply test]

Geographical Market

[look @ demand and supply test]

Demand substitutability

Extent to which customers can obtain the product or suitable alternative from a source other than the undertaking.

SSNIP test- small but significant and non-transitory increase in price

If undertaking increases price permanently by 5-10%, would this be unprofitable because a sufficient number of customers would resort to alternative products or suppliers?

See Demand Substitution in Commission Notice

Supply substitutability

The ease with which a supplier could switch into the production of products whose price will have notionally risen by 5-10%. If they can so sufficiently easily and cost effectively then this increased level of supply may render any attempted price-increase unprofitable, w/o need for any demand-side substitution

See Supply substitution in Commission Notice

Art 101(1)/s.2(1) vertical/Distribution (sgs 12)

EU...

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