Introduction it is difficult to draw the line between lawful and unlawful practices implemented by dominant firms. Developments under articles 101 and 102 tfeu in 2010. 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. Note t hat the direct effect of article 10 was confir med in. Its core role is the regulation of monopolies, which restrict competition in private industry and. On the first place the agreement in question should be scrutinized under art. The real nature of abuse of dominance provisions pablo ibanez colomo 1. Cjeu on price discrimination under article 102 tfeu. 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. Recent article 102 tfeu caselaw chillincompetition.
How does case law relate to the guidelines and the welfare perspective. As regards the conditions for the application of article 102 tfeu and the distinction between the object and effect of the abuse, it should be pointed out that, for the purposes of applying that article, showing an anticompetitive object and an anticompetitive effect may, in some cases, be one and the. 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. Article 1011 prohibits any agreement or concerted practice formal or informal, written or unwritten that is made between.
Market failures, transaction costs and article 1011 tfeu. Functioning of the european union tfeu, which prohibits anticompetitive agreements, and article 102 tfeu, which prohibits the abuse of a dominant position. A significant risk for businesses fines intel, 1,060,000,000 remediesstructural and behavioral damages courage and crehan c45399. 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. 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. Article 10 tfeu as a balancing instrument regardless of initial object or effect approach. Public investments and the application of articles 101 and. Proceedings for the application of articles 101 and 102. In this provision, an infringement includes agreements19 having as their object or effectthe prevention, restriction or distortion of competition. Since the licensing of iprs is brought about by means of agreements, article 101 is the principal instrument for regulating such forms of collaboration from a competition law perspective. Within such a competition element of public investments, the application of articles 101 and 102 tfeu raises difficult issues relating to the qualification of contracting authorities as undertakings, centralised acquisitions, framework agreements, acceptable contract duration and further extensions, postaward reduction of bid price, and. Our posts are short comments on judgments and legislation and are intended for anyone who wishes to stay informed on eu law.
Treaty on european union teu, treaty on the functioning of the european union tfeu and regulations section 1 treaty on european union teu. Dec 14, 2016 therefore, there is every reason to prohibit it as restrictive by object under article 1011 tfeu. The object approach is independent of the presence of buyer power. Arguably, the ongoing controversies around the scope of article. Agreements that restrict competition by object under article.
Exploring restrictions by object within article 102 tfeu. European union competition law university of london. In june 2014, the general court of the eu delivered its judgment in intel. Agreements having an anticompetitive object are exempted from an analysis of the anti. Article 102 tfeu is likely to have its origin in article 101 tfeu. Dg competitions manual of procedure for the application of articles. Eu article 102 tfeu investigationsclosed cases tracker practice notes. Commission notice on best practices for the conduct of. Traditional concerns of monopoly behaviour, such as predatory pricing, refusals to deal, excessive pricing, tying and bundling, discount practices and.
Pdf impact of the new approach to article 102 tfeu on the. Under article 102 tfeu, a rough distinction is generally made between two 2 consolidated version of the treaty on the functioning of the european union, oj c 326, 26. Agreements that restrict competition by object under. Another example is found in article 102 tfeu case law. See for example the approach in germany, enforcement signal as to the legality of price fixing. 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. This treaty organises the functioning of the union and determines the areas of, delimitation of, and arrangements for exercising its competences. A clarification of the law on rebates under article 102 tfeu. Article 101 tfeu symmetric approach to input and output price fixing. How does article 10 tfeu case law relate to ec guidelines. Internal dg competition working documents on procedures for the application of. State aid and tax rulings an assessment of the selectivity. Restrictions by object within article 102 tfeu and a. Apr 24, 2012 a bit offtopic but still its always the same issue with regard to the quality of interpreting andor translation in eu matters my experience tells me that for ex.
Impact of the new approach to article 102 tfeu on the. Object, regardless of the presence of downstream collusion. Article 101, 102 formerly articles 81 and 82 and before. This table summarises completed european commission investigations into alleged cartels abuses of dominant positions article 102 tfeu since 20. Article 102 of the treaty on the functioning of the. Antitrust law by richard markovits is without doubt one of the most impressive academic commentaries on us and eu antitrust law. Article 102 of the treaty on the functioning of the european. Policy the choice between the two options is policy oriented. 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.
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. Articles law stated as at 17jan2018 european union an article addressing practical counselling issues in relation to the eu competition law analysis of rebate schemes under article 102 of the tfeu after the ecjs judgment in intel case c414 p on 6 september 2017. Its core role is the regulation of monopolies, which restrict competition in private industry and produce worse outcomes for. 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. Social costs of collusive price fixing outweigh the benefits.
The european law blog aims to highlight, and comment on, current developments in eu case law and legislation. Eu article 102 tfeu investigationsclosed cases tracker. A practical approach to rebates 102 of the tfeu after the. The principal purpose of this notice is to provide practical guidance on the conduct of proceedings before the european commission commission concerning articles 101 and 102 of the treaty on the functioning of the european union tfeu 1 in accordance with regulation ec no 12003 2, its implementing regulation 3 and the case law of the court of justice of the european union. Neergaard u 2007 modernising article 102 tfeuwith particular focus on public and otherwise privileged undertakings. For that purpose, several questions will be answered. Pdf this paper will analyze the impact of the modernized approach to article 102 tfeu on the application of the prohibition of. The antitrust manual of procedures does not contain binding instructions for.
Particular restrictions that fall within the impugned category are therefore automatically seen as having the object of restricting competition under article 1011 tfeu. However, in its analysis of the facts of this case, the oft has not only considered whether the. Eu competition law buying alliances, cartels and purchase. 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. 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. The principal purpose of this notice is to provide practical guidance on the conduct of proceedings before the european commission commission concerning articles 101 and 102 of the treaty on the functioning of the european union tfeu 1 in accordance with regulation ec no 12003 2, its implementing regulation 3 and the case law of the court of. It is sufficient if it can be demonstrated that the beneficiary is involved in an economic activity and that it oper ates in a market in which there is trade between member. The commissions notices on access to file 8 and handling of complaints. The law and economics of article 102 tfeu robert o. 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 be provided pursuant to regulatory obligations. Todays competition bible is clearly, and without the shadow of a doubt, the reference on article 102 tfeu. A commentary on article 102 tfeu by martin herz, hans h.
Efficiencies can be attained without the fixing of input price. Has the consumerwelfare standard already become, or will it become in particular. Traditional concerns of monopoly behaviour, such as predatory pricing, refusals to deal, excessive pricing, tying and bundling, discount. Rules applying to undertakings article 102 ex article 82 tec. 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. Learn vocabulary, terms, and more with flashcards, games, and other study tools. Fines for breaking eu competition law european commission. The debates to which it has given rise in less than six months suggest that the controversy about the legal treatment of exclusive dealing and rebates under article 102 tfeu is still very much alive. In both cases, for eu law to apply at all, there must be the possibility of an effect on trade between mamber states. European commission, dg competition, private enforcement unit 8 indirect purchasers objective to ensure compensation for all categories of victims courage 2001, manfredi 2006. The law and economics of article 102 tfeu robert odonoghue. I guess everyone should thank robert odonoghue and jorge padilla for the assistance they have provided to the competition community since the 1st ed. This paper will analyze the impact of the modernized approach to article 102 tfeu on the application of the prohibition of dominant position abuse contained in polish competition law.
Article 102 tfeu, by prohibiting abuse of a dominant position by one or more undertakings, controls abuse behaviour by an undertaking, or undertakings, which have significant market power. The majority of cases involve a solution to the negative external effects on the environment. 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. See to that extent article 120 tfeu, 119 tfeu and article 3 teu. Request pdf is the guidance paper on the commissions enforcement priorities in applying article 102 tfeu to abusive exclusionary conduct useful. Treaty on the functioning of the european union tfeu. As recent cases3 have reminded us, competition law, including eu and domestic competition law, is territorial in nature. It follows that any individual can claim compensation for the harm suffered where there is a causal relationship between the harm and an agreement or practice prohibited under article 101. The two sets of provisions are in substance identical. 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.
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. Oct 08, 20 in addition, the major constituent elements of article 102 tfeu, such as market definition, dominance, effect on trade and applicable remedies are considered at length. For the purposes of this document, references to articles 101 and 102 tfeu should be understood as references to articles 81 and 82 of the ec treaty when appropriate. This is a summary of the european law section and deals with article 102 tfeu. Julia lindfors article 102 tfeu and online search engines 1 1. Therefore, there is every reason to prohibit it as restrictive by object under article 1011 tfeu. Daniel jowell qc if there is a hard brexit2, will it still be possible to bring actions before the u. Proceedings for the application of articles 101 and 102 tfeu. The tests of illegality under articles 101 and 102 tfeu. Is the guidance paper on the commissions enforcement priorities. Article 101, 102 formerly articles 81 and 82 and before that 85, 86 the two fundamental european competition law provisions were articles 85 and 86 of the treaty of rome, the treaty that founded the european economic community eec that evolved into the european union and remains, though amended, the fundamental eu constitutional document. 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 101, 102 formerly articles 81 and 82 and before that. Dg competition is administratively organised in directorates, each consisting of three to five units.
Damages actions for breach of articles 101 and 102 tfeu. Article 102 of the treaty on the functioning of the european union tfeu formerly under article 82 of the european community treaty ec prohibits dominant undertakings from abusing their position within an internal market or in a substantial part of it, as incompatible with the internal market in so far as it affects trade between member states. Article 102 tfeu you do not have access to this content chapter 6. This treaty and the treaty on european union constitute the treaties on which the union is founded.
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