A legal perspective on article 102 tfeu case law 1 beyond the more economicsbased approach. Its core role is the regulation of monopolies, which restrict competition in private industry and. Eu competition law eu competition law merger legislation. There is a world before and a world after the law and economics of article 102 tfeu. Declaration on article 290 of the treaty on the functioning of the european union. 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. Application of article 102 tfeu by the european commission and. Pdf the reform of the application of article 102 tfeu. In that case, possession of intellectual property rights ipr is recognized.
Declaration on article 222 of the treaty on the functioning of the european union. The ordoliberal concept of abuse of a dominant position and. Decision of the office of communications article 102 treaty. The public transport ticketing schemes block exemption. The application of article 102 tfeu by the european commission and the european courts romano subiotto qc, and david r. Introduction it is difficult to draw the line between lawful and unlawful practices implemented by dominant firms. Tfeu treaty on the functioning of the european union. Article 102 tfeu ex article 82 ec, ex article 86 ec 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. It is in no way the purpose of article 102 tfeu to prevent an undertaking from acquiring, on its own merits, the dominant position on a market. This prohibits any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it, as incompatible with the internal market in so far as it may affect trade between eu member states. Abuse of dominant market positions article 102 tfeu a dominant position is a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained in the relevant market by giving it the power to behave to an appreciable extent independently of. The european law blog aims to highlight, and comment on, current developments in eu case law and legislation.
The single economic entity doctrine in eu competition law okeoghene odudu and david bailey abstract articles 101 and 102 tfeu apply to the activities of undertakings. Decision of the office of communications article 102. This article summarises noteworthy decisions and judgments adopted in 2010 involving the application of article 102 tfeu. Likewise, at the time article 102 tfeu was enacted, article 667 ecsc had never been applied either. The tests of illegality under articles 101 and 102 tfeu. A case commentary explains eu competition law by presenting the relevant legal provisions together with carefully selected case extracts pertaining to those provisions. 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. Article 101 tfeu touches upon coordinated behaviour between undertakings, whereas article 102 concerns the unilateral action of an undertaking. 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.
For that purpose, several questions will be answered. Oxford university press online resource centre outline. Initially, even the underpinning notion and purpose of eu. The concept of dominance under article 102 tfeu, as it will be presented in this paper, has been a controversial topic since its introduction. Market integration is an objective of article 101 tfeu. Declaration on article 252 of the treaty on the functioning of the european union regarding the number of advocatesgeneral in the court of justice. Article 102 of the treaty on the functioning of the european union tfeu. Article 102 tfeu study guide by jonnyjt includes 19 questions covering vocabulary, terms and more.
Eu competition law abuse of dominance article 102 tfeu. On 2 march 2016, the german bundeskartellamt bka launched an investigation against facebook under art. Our posts are short comments on judgments and legislation and are intended for anyone who wishes to stay informed on eu law. Exploring restrictions by object within article 102 tfeu.
The basic framework of competition law, as embedded in articles 101 and 102 of the tfeu, is generally sufficient to address the most pertinent competition. As the former european commissioner for competition, mrs neelie kroes recently stated, standards are the foundation. Ticketing schemes public transport ticketing schemes. Cjeu mandates effectsbased assessment of loyalty rebates. An overview of the eu competition rules pdf slaughter and may. In particular, article 102 tfeu prohibits undertakings that individually or collectively hold a dominant position within the eu or a substantial part of it from abusing their dominance without objective justification insofar as it may affect trade between. According to this purposive method of interpretation, the ecj does not limit itself to the specifi c wording of the treaty articles, but rather looks at the broader underlying objective. Developments under articles 101 and 102 tfeu in 2010. 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 1011 prohibits any agreement or concerted practice. Article 102 of the treaty on the functioning of the european.
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. The absence of defined criteria led some commentators to fear that article 102 tfeu would ultimately become a dead letter. Therefore, it is necessary to analyse whether article 102 tfeu can contribute beyond the scope of article 101 tfeu. Suffice it to think of practices hindering crossborder trade such as market sharing cartels,2 agreements between domestic firms to prevent entry by foreign rivals,3 and.
The challenges involved with the application of article 102 tfeu to. Best practices on the disclosure of information in data. The following shall be seen as incompatible with the internal market. This is the website of the repertory of practice of united nations organs legal publications of the codification division of the office of legal affairs. In particular, article 102 tfeu prohibits undertakings that individually or collectively hold a dominant position within the eu or a substantial part of it from abusing their dominance without objective justification insofar as it may affect trade between member states. 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. As a result, agreements aimed at partitioning national markets are in principle restrictive of competition by object. Todays competition bible is clearly, and without the shadow of a doubt, the reference on article 102 tfeu. Article 101 of the treaty on the functioning of the european.
In the eu, unilateral or dominant firm conduct is governed by article 102 tfeu. The law and economics of article 102 tfeu download ebook. Legal test for finding of a collective dominant position. Article 102 of the treaty on the functioning of the. Without prejudice to article 4 of the treaty on european union or to articles 93, 106 and 107 of this treaty, and given the. The early debate concerning article 102 tfeu was primarily about its scope. Appeal article 102 tfeu abuse of a dominant position loyalty rebates commissions jurisdiction regulation ec no 12003. In contrast, article 101 has in many respects undergone a change to allow for economical. 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. The role of article 102 in european pharmaceutical sector. Article 102 tfeu, aimed at serving the ordoliberal agenda or. 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. Dg competitions manual of procedures for the application of articles 101 and 102 tfeu is an internal working tool intended to give practical guidance to staff on how to conduct an investigation applying articles 101 and 102 tfeu.
Basic concepts and case studies nicolas petit university of liege 11 july 2011. Iv, issue 8 november 2016 6949 enjoyed by the consumer. 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. Quizlet flashcards, activities and games help you improve your grades.
The judgments handed down by the union courts in intel v commission and post danmark ii do not alter in any way the commissions self binding duty to apply the guidance paper. Article 102 tfeu is likely to have its origin in article 101 tfeu. Therefore, it is necessary to analyse whether article 102 tfeu can contribute beyond the scope of article 101 tfeu and whether. Article 102 tfeu article 102 tfeu ex article 82 ec, ex article 86 ec 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. 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. Article 102 tfeu in a manner resembling the essential facilities doctrine in commercial solvents. Sep 03, 2015 this article examines the european commissions recent reform of its application of article 102 tfeu the prohibition of abuse of dominance. Article 101 of the treaty on the functioning of the. Article 102 prohibits the abuse of a dominant position. Pdf impact of the new approach to article 102 tfeu on the. Abusing a dominant positionoverview lexispsl, practical. 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. Introduction at the end of 2012, there were a total of 30 active article 102 tfeu dossiers.
Dec 28, 2018 this chapter explores the impact of ordoliberal thinking on the drafting of the prohibition of abuse of a dominant position in the market that was included in the competition rules of the rome treaty establishing the european economic community as well as on its interpretation by the commission and the court of justice of the european union cjeu. The interface between antitrust law and intellectual property rights has been in the spotlight for decades. This chapter explores the impact of ordoliberal thinking on the drafting of the prohibition of abuse of a dominant position in the market that was included in the competition rules of the rome treaty establishing the european economic community as well as on its interpretation by the commission and the court of justice of the european union cjeu. Article 101 tfeu or article 102tfeu, through collective dominance, or could such conduct constitute infringement of sion with support one provi from another. Article 102 of the tfeu prevents undertakings from those who hold a dominant position within the market from being abused. 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. Free movement of goods outline answers to essay and problem questions.
Its core role is the regulation of monopolies, which restrict competition in private industry and produce worse outcomes for. Any abuse by one or more undertakings of a dominant position within the internal market. In investigating the allegations made by whistl, ofcom has considered whether the introduction of the price differential in january 2014 amounted to an abuse of royal mails. Articles 258260, 263, 265, 277 and 340 tfeu chapter 5.
Guidance on the commissions enforcement priorities in. Enforcement of frand commitments under article 102 tfeu. Traditional concerns of monopoly behaviour, such as predatory pricing, refusals to deal, excessive pricing, tying and bundling, discount practices and unlawful. Article 102 tfeu has been the target of vast criticism the recent years. This site is like a library, use search box in the widget to get ebook that you want. A commentary on article 102 tfeu by martin herz, hans h. Agreements having an anticompetitive object are exempted from an analysis of. Click download or read online button to get the law and economics of article 102 tfeu book now. In its notice on the application of the article 81 3 ec 2004, now article 101 3 tfeu, the commission includes the statement that. Agreements having an anticompetitive object are exempted from an analysis of the anti. I guess everyone should thank robert odonoghue and jorge padilla for the assistance they have provided to the competition community since the 1st ed.
The commission has continued to enforce article 102 tfeu actively. In this provision, an infringement includes agreements19 having as their object or effectthe prevention, restriction or distortion of competition. Last, but not least, the judgment upholds the unnamed article 1023 tfeu defense that the commission had plugged in 30 of its guidance paper see 42. The holding of a dominant market position is not, by itself, objectionable under article 102. Video lecture on articles 101 and 102 tfeu competition law in the eu. Nor does that provision seek to ensure that competitors less efficient than the undertaking with the dominant position should remain on the market paragraph 3. On 19 december 2017, in its preliminary assessment, the authority declared that facebook is abusing its dominant position through the imposition of misleading privacy policies regarding data collected from thirdparty websites. Article 102 tfeu ex article 82 ec, ex article 86 ec. In this paper it will discuss the general framework of both articles by analyzing all the elements of the articles, such us. Article 102 tfeu has been called the last steampowered train of the.
The application of article 102 tfeu by the european. The concepts of dominance and abuse are the article s pivots and have been reinterpreted over the course of the history of the eu. The interpretation of the concept itself and its crucial elements have been subject to intense dispute. The ordoliberal concept of abuse of a dominant position. Apr 24, 2012 in so doing, it recognises that not all foreclosure is unlawful, but only that anticompetitive foreclosure matters under article 102 tfeu. Recent article 102 tfeu caselaw chillincompetition. Eu competition law abuse of dominance article 102 tfeu uio. The chapter ii prohibition and article 102 tfeu prohibit the abuse of a dominant position within the uk or the eus internal market, respectively. The cjeu has now clarified that a similar principle applies in article 102 tfeu. Notion of an abuse article 102 refers to conduct which is such as to influence the structure of a market where, as a result of the very presence of the undertaking in question, the degree of competition is already weakened and which has the effect of hindering the maintenance of the. This duty includes the obligation to test article 102 tfeu cases under the as efficient competitor aec framework, as set out in the 2009 guidance paper. 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. European union competition law university of london.
Pdf interpreting the boundaries of collective dominance in. These decisions and rulings are largely orthodox in their analysis and outcome. An undertaking may comprise several natural or legal persons, together referred to as asingle economic entity. Impact of the new approach to article 102 tfeu on the. 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 101 tfeu and market integration pablo ibanez colomo abstract. Master thesis szabolcs borsos the evolution of the concept of. Module b 26 an important tool used by the ecj to expand the list is teleological reasoning. A practical approach to rebates 102 of the tfeu after the. Evolution and development of the essential facilities. Antitrust law by richard markovits is without doubt one of the most impressive academic commentaries on us and eu antitrust law.
Arguably, the ongoing controversies around the scope of article. Consolidated version of the treaty on the functioning of the european union part three. Using the commissions own reform documents and in particular the guidance on enforcement priorities as the. Iv, issue 8 november 2016 6945 articles 101 and 102 tfeu are the most prominent treaty provisions on competition. Article 101 of the treaty on the functioning of the european union prohibits cartels and other agreements that could disrupt free competition in the european economic areas internal market. The antitrust manual of procedures does not contain binding instructions for. The concepts of dominance and abuse are the articles pivots and have been reinterpreted over the course of the history of the eu. The real nature of abuse of dominance provisions pablo ibanez colomo 1. Damages actions for breach of articles 101 and 102 tfeu.
1342 71 1201 43 1106 986 778 372 728 262 1494 331 1144 1491 456 181 1397 686 63 991 1426 1214 307 121 955 935 1140 557 715 956 850 510 438 1261 62 590 665 1140 1080 74 872 1109 204 1191 1142