The general prohibition in article 101 is followed by a nonexhaustive list of examples of anticompetitive practices such as price fixing and market sharing. Agreements that restrict competition by object under. Article 102 of the treaty on the functioning of the european union formerly article 82 of the treaty establishing the european community is aimed at preventing undertakings who hold a dominant position in a market from abusing that position. Traditional concerns of monopoly behaviour, such as predatory pricing, refusals to deal, excessive pricing, tying and bundling, discount practices and unlawful discrimination are treated in. The term undertaking is a eurospeak word for any persons or firms in an enterprise, and is used to describe those engaged in an economic. This is a summary of the european law section and deals with article 102 tfeu. This article examines the european commissions recent reform of its application of article 102 tfeu the prohibition of abuse of dominance. Chapter 6 article 103 tfeu regulation regarding the application of arts 101 and 102. Quizlet flashcards, activities and games help you improve your grades. Treaty on the functioning of the european union tfeu. Articles 101 and 102 tfeu are the most prominent treaty provisions on competition. Article 102 tfeu study guide by jonnyjt includes 19 questions covering vocabulary, terms and more. The law and economics of article 102 tfeu robert o.
Its core role is the regulation of monopolies, which restrict competition in private industry and. Articles 101 and 102 are a matter of public policy which must be automatically applied by national courts eco swiss, 1999 any individual can rely on a breach of article 101 and 102 ec before a national court courage v crehan, 2001 any individual can claim compensation for the harm suffered where there. The law and economics of article 102 tfeu is a comprehensive, integrated treatment of the legal and economic principles that underpin the application of article 102 tfeu to the behaviour of dominant firms. Chapter 8 article 105 tfeu application of arts 101 and 102. Traditional concerns of monopoly behaviour, such as predatory pricing, refusals to deal, excessive pricing, tying and bundling, discount.
Consolidated version of the treaty on the functioning of the european union part three. Cjeu mandates effectsbased assessment of loyalty rebates. Pablo ibanez colomo intel and article 102 tfeu case law 29 article 102 tfeu as a provision applying specifically to dominant firms one may claim, finally, that criticism directed at the inconsistent approach followed by the ecj in delimitis and hoffmannla roche fails to acknowledge that an explicit choice has been made in the treaty to treat. Article 102 tfeu prohibits anticompetitive behaviour by dominant undertakings, and, together with article 101 tfeu, stands in the centre of the competition policy of the eu. Protocols annexed to the treaty on european union and to the treaties establishing the european community, the european coal and steel community and the european atomic energy. Article 102 of the treaty on the functioning of the european. Any abuse by one or more undertakings of a dominant position within the internal market. However, in its analysis of the facts of this case, the oft has not only considered whether the. Pdf this paper will analyze the impact of the modernized approach to article 102 tfeu on the application of the prohibition of dominant position abuse. Chapter 8 article 105 tfeu application of arts 101 and 102 by the commission chapter 9 article 106 tfeu public undertakings chapter 10 article 107 tfeu general rule. Its purpose is to control anticompetitive behaviour entered into between different undertakings. Article 101, 102 formerly articles 81 and 82 and before that. Recent article 102 tfeu caselaw chillincompetition.
The cjeu has now clarified that a similar principle applies in article 102 tfeu. Consolidated version of the treaty on the functioning of. Article 102 tfeu any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited as incompatible with the internal market in so far as it may affect trade between member states. Therefore, there is every reason to prohibit it as restrictive by object under article 1011 tfeu. Chapter 7 article 104 tfeu competence of authorities in member states. Rules applying to undertakings article 102 ex article 82 tec. Article 101 prohibits cartels and anticompetitive agreements, while article 102 prohibits abuse of a dominant position. A commentary on article 102 tfeu by martin herz, hans h. The application of article 102 tfeu by the european commission and the european courts. The following shall be prohibited as incompatible with the internal market.
Determine relevant market assess dominance on that market. Nov 15, 20 infringes article 102 tfeu if the conduct is capable of restricting competition and of making market entry more difficult or impossible for equally efficient actual or potential competitors. Dec 14, 2016 therefore, there is every reason to prohibit it as restrictive by object under article 1011 tfeu. Pdf impact of the new approach to article 102 tfeu on the. During the period covered, the european commission and courts have followed their traditional approach in the application of article 102 tfeu abuse of dominant position. Developments under articles 101 and 102 tfeu in 2010.
Agreements that restrict competition by object under article. The general prohibition in article 101 is followed by a nonexhaustive list of examples of anticompetitive practices such as. The concepts of dominance and abuse are the articles pivots and have been reinterpreted over the course of the history of the eu. Jan 26, 2018 chapter 8 article 105 tfeu application of arts 101 and 102 by the commission chapter 9 article 106 tfeu public undertakings chapter 10 article 107 tfeu general rule. General provisions on the unions external action article 205. Jun 02, 2017 article 102 tfeu prohibits anticompetitive behaviour by dominant undertakings, and, together with article 101 tfeu, stands in the centre of the competition policy of the eu. Proceedings for the application of articles 101 and 102. Another example is found in article 102 tfeu case law. As recent cases3 have reminded us, competition law, including eu and domestic competition law, is territorial in nature. A clarification of the law on rebates under article 102 tfeu. Article 101 tfeu does not specifically ban cartels, instead declaring as illegal all agreements, decisions and concerted practices which are anticompetitive and which distort the single market. The unions action on the international scene, pursuant to this part, shall be guided by the principles, pursue the objectives and be conducted in accordance with the general provisions laid down in chapter 1 of title v of the treaty on european union.
Article 101 tfeu, notion of undertaking and succession of. Article 102 tfeu ex article 82 ec, ex article 86 ec. Article 102 of the tfeu prevents undertakings from those who hold a dominant position within the market from being abused. This paper aims to analyze the historical development of competition law in the european union, the eu treaties, regulations and directives, which guarantee the protection of competition in the european community. A parallel can be drawn with the restrictions by object under article 1011 tfeu for which the parties can also show under article 10 tfeu that an agreement is not capable of having restrictive effects on competition and therefore escape the prohibition. Competition law webinar article 102 linkedin slideshare. The law and economics of article 102 tfeu kindle edition. Article 102 of the treaty on the functioning of the european union tfeu prohibits abusive conduct by companies that have a dominant position on a particular market an article 102 case dealt with by the european commission or a national competition authority can originate either upon receipt of a complaint or through the opening of an owninitiative investigation. Article 102 tfeu complements the regulations of eu competition law dealing with agreements between two or more undertakings. The real nature of abuse of dominance provisions pablo ibanez colomo 1.
Pdf interpreting the boundaries of collective dominance in article. In its recent decisional practice under article 102 tfeu the commission attempts to demonstrate anticompetitive effects and consumer harm by relying on various comparators e. Introduction it is difficult to draw the line between lawful and unlawful practices implemented by dominant firms. I guess everyone should thank robert odonoghue and jorge padilla for the assistance they have provided to the competition community since the 1st ed. In this paper it will discuss the general framework of both articles by analyzing all the elements of the articles, such us.
Particular restrictions that fall within the impugned category are therefore automatically seen as having the object of restricting competition under article 1011 tfeu. Jul 11, 2012 the treaty on the functioning of the european union tfeu organises the functioning of the union and determines the areas of, delimitation of, and arrangements for exercising its competences tfeu, p. Dg competition is administratively organised in directorates, each consisting of three to five units. The law and economics of article 102 tfeu robert odonoghue. The summary is in english and includes the jurisprudence associated with the theme.
Most directorates have a 1 with effect from 1 december 2009, articles 81 and 82 of the ec treaty have become articles 101 and 102 respectively of the tfeu. Article 101 tfeu specifies the rules applicable to the behaviour of undertakings. Daniel jowell qc if there is a hard brexit2, will it still be possible to bring actions before the u. Resolved to facilitate the free movement of persons, while ensuring the safety and security of their peoples, by establishing an area of freedom, security and justice, in accordance with the provisions of. The concepts of dominance and abuse are the articles pivots and have been reinterpreted over. The two sets of provisions are in substance identical. Todays competition bible is clearly, and without the shadow of a doubt, the reference on article 102 tfeu. Proceedings for the application of articles 101 and 102 tfeu. Cjeu on price discrimination under article 102 tfeu. There is a world before and a world after the law and economics of article 102 tfeu. The tests of illegality under articles 101 and 102 tfeu. In so doing, it recognises that not all foreclosure is unlawful, but only that anticompetitive foreclosure matters under article 102 tfeu. Pdf in this article i examine the scope of application of the law of collective dominance in article 102 tfeu. Common rules on competition, taxation and approximation of laws chapter 1.
Jan 26, 2018 chapter 5 article 102 tfeu abuse of dominance chapter 6 article 103 tfeu regulation regarding the application of arts 101 and 102 chapter 7 article 104 tfeu competence of authorities in member states. Competition law damages actions in england for violation. The commission has continued to enforce article 102 tfeu actively. Article 102 ex article 82 tec any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited as incompatible with the internal market in so far as it may affect trade between member states. Damages actions for breach of articles 101 and 102 tfeu. Article 102 tfeu has been called the last steampowered train of the. It is plausible that an exclusivity obligation has anticompetitive effects when applied by a dominant firm, even though it covers a small part of the market. Antitrust law by richard markovits is without doubt one of the most impressive academic commentaries on us and eu antitrust law. Article 101, 102 formerly articles 81 and 82 and before. Article 102 tfeu abuse of a dominant position chapter 4 an. For instance, they have continued to apply the margin squeeze theory to cases where inputs controlled by dominant firms are essential for downstream competition or must. Is the guidance paper on the commissions enforcement. Sep 03, 2015 this article examines the european commissions recent reform of its application of article 102 tfeu the prohibition of abuse of dominance.
Clarification ici v commission was case where ecj held there was an oligopoly or that producers of specialist dyes tended to be oligopolistic in a market with 10 producers with 80% of the market share who raised prices simultaneously in. Articles 101 and 102 are a matter of public policy which must be automatically applied by national courts eco swiss, 1999 any individual can rely on a breach of article 101 and 102 ec before a national court courage v crehan, 2001 any individual can. Paper essay substantive law of the european community. Rules applying to undertakings article 101 ex article 81 tec 1. Article 101 of the treaty on the functioning of the european. Eu competition law abuse of dominance article 102 tfeu uio. Using the commissions own reform documents and in particular the guidance on enforcement priorities as the benchmark, the article investigates the postreform decisions to establish the potential. Article 53 and 54 of the eea agreement are essentially the same provisions and effectively extend european competition law to cover the eea countries, i. Consolidated version of the treaty on the functioning of the. Article 101 of the treaty on the functioning of the. Jointly authored by a lawyer and an economist, the law and economics of article 102 tfeu contains an integrated approach to the legal and economic principles that frame policy. The treaty on the functioning of the european union tfeu states in article 33 as one of its goals the establishment of an internal market. Appeal article 102 tfeu abuse of a dominant position loyalty rebates commissions jurisdiction regulation ec no 12003. In december 2008, the european commission hereafter, the commission published a guidance paper on its enforcement priorities in applying article 82 of the ec treaty now article 102 tfeu.
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