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Competition Law Notes

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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?
Does s.2 apply?
- agreement/decision/concerted practice?
- agreement/decision/concerted practice?
- Has an object
- Has as object Prevention/restriction/distortion Prevention/restriction/distortion of competition of competition
- Effect on trade between MS if there is an
- Effect on trade on UK trade if implemented in inter-state effect UK Examples of infringement in art. 101(1) (a-e) price fix - happens in most exam q's Limit or control production Share markets or source supply Apply dissimilar conds to equivalent trans's (e) Make the conclusion subject to acceptance by other parties (a) (b) (c) (d)

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

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?

Does an Exemption apply?
- UK Block exemption - s.9
- Parallel exemption (EU) - s.10

EU competition regime 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

Domestic competition regime
- 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 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

Might s.9 CA assist?
- exercise w/caution as have to self assess 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 PS20 mill
- S18 CA infringement - turnover of the undertaking must not exceed PS50 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

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