EU & UK Competition Law

Question 1

TFEU, article 101

Answer 1

‘1. The following shall be prohibited as incompatible with the common market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market.
2. Any agreements or decisions prohibited pursuant to this Article shall be automatically void.’

Question 2

Competition Act, s. 2

Answer 2

‘(1) …[A]greements between undertakings, decisions by associations of undertakings or concerted practices which-
(a) may affect trade within the United Kingdom, and
(b) have as their object or effect the prevention, restriction or distortion of competition within the United Kingdom,
are prohibited unless they are exempt….
…
(4) Any agreement or decision which is prohibited by subsection (1) is void.
…
(8) The prohibition imposed by subsection (1) is referred to in this Act as ‘the Chapter I prohibition’.’

Question 3

TFEU, article 101(3)

Answer 3

‘The provisions of paragraph 1 may, however, be declared inapplicable in the case of:
- any agreement or category of agreements between undertakings,
- any decision or category of decisions by associations of undertakings,
- any concerted practice or category of concerted practices,
which contributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, and which does not:
(a) impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives;
(b) afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question.’

Question 4

Competition Act, s. 9

Answer 4

‘An agreement is exempt from the Chapter I prohibition if it-
(a) contributes to-
(i) improving production or distribution, or
(ii) promoting technical or economic progress,
while allowing consumers a fair share of the resulting benefit; and
(b) does not-
(i) impose on the undertakings concerned restrictions which are not indispensable to the attainment of those objectives; or
(ii) afford the undertakings concerned the possibility of eliminating competition in respect of a substantial part of the products in question.’

Question 5

TFEU, article 102

Answer 5

‘Any abuse by one or more undertakings of a dominant position within the common market or in a substantial part of it shall be prohibited as incompatible with the common market in so far as it may affect trade between Member States.’

Question 6

Competition Act, s. 18

Answer 6

‘(1) …[A]ny conduct on the part of one or more undertakings which amounts to the abuse of a dominant position in a market is prohibited if it may affect trade within the United Kingdom.
…
(3) In this section-
‘dominant position’ means a dominant position within the United Kingdom; and
‘the United Kingdom’ means the United Kingdom or any part of it.
(4) The prohibition imposed by subsection (1) is referred to in this Act as ‘the Chapter II prohibition’.’

Question 7

Incorporation of EU principles into UK law;

Competition Act, s. 60 (the ‘Europrinciples clause’):

Answer 7

‘(1) The purpose of this section is to ensure that so far as is possible (having regard to any relevant differences between the provisions concerned), questions arising under this Part in relation to competition within the United Kingdom are dealt with in a manner which is consistent with the treatment of corresponding questions arising in Community [sic] law in relation to competition within the Community [sic].

(2) At any time when the court determines a question arising under this Part, it must act (so far as is compatible with the provisions of this Part and whether or not it would otherwise be required to do so) with a view to securing that there is no inconsistency between-
(a) the principles applied, and decision reached, by the court in determining that question; and
(b) the principles laid down by the Treaty and the European Court, and any relevant decision of that Court, as applicable at that time in determining any corresponding question arising in Community [sic] law.
(3) The court must, in addition, have regard to any relevant decision or statement of the Commission.
(4) Subsections (2) and (3) also apply to-
(a) the Director; and
(b) any person acting on behalf of the Director, in connection with any matter arising under this Part.
(5) In subsections (2) and (3), ‘court’ means any court or tribunal.
(6) In subsections (2)(b) and (3), ‘decision’ includes a decision as to-
(a) the interpretation of any provision of Community law;
(b) the civil liability of an undertaking for harm caused by its infringement of Community [sic] law.’