Rules applying to undertakings article 102 ex article 82 tec. Eu article 102 tfeu investigationsclosed cases tracker practice notes. Damages actions for breach of articles 101 and 102 tfeu. Proceedings for the application of articles 101 and 102. 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. 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. Impact of the new approach to article 102 tfeu on the. These two treaties, which have the same legal value, shall be referred to as the. Eu competition law buying alliances, cartels and purchase. 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. 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. The real nature of abuse of dominance provisions pablo ibanez colomo 1. Treaty on the functioning of the european union tfeu.
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. Article 102 of the treaty on the functioning of the european. The summary is in english and includes the jurisprudence associated with the theme. Commission notice on best practices for the conduct of. Eu article 102 tfeu investigationsclosed cases tracker. Dec 14, 2016 therefore, there is every reason to prohibit it as restrictive by object under article 1011 tfeu. Exploring restrictions by object within article 102 tfeu.
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. This treaty organises the functioning of the union and determines the areas of, delimitation of, and arrangements for exercising its competences. In the network economy the greatest network of them all is the internet, which allows an unlimited number of users to share. Cjeu on price discrimination under article 102 tfeu. Another example is found in article 102 tfeu case law. Functioning of the european union tfeu, which prohibits anticompetitive agreements, and article 102 tfeu, which prohibits the abuse of a dominant position. Pdf impact of the new approach to article 102 tfeu on the. Has the consumerwelfare standard already become, or will it become in particular.
This table summarises completed european commission investigations into alleged cartels abuses of dominant positions article 102 tfeu since 20. Pdf this paper will analyze the impact of the modernized approach to article 102 tfeu on the application of the prohibition of. There is a world before and a world after the law and economics of article 102 tfeu. Policy the choice between the two options is policy oriented. Traditional concerns of monopoly behaviour, such as predatory pricing, refusals to deal, excessive pricing, tying and bundling, discount. Developments under articles 101 and 102 tfeu in 2010.
Article 102 tfeu you do not have access to this content chapter 6. 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. Is the guidance paper on the commissions enforcement priorities. 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. 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. Agreements that restrict competition by object under. How does case law relate to the guidelines and the welfare perspective. Object, regardless of the presence of downstream collusion. Our posts are short comments on judgments and legislation and are intended for anyone who wishes to stay informed on eu law. Agreements that restrict competition by object under article. 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. Public investments and the application of articles 101 and.
Article 101, 102 formerly articles 81 and 82 and before that. This welfare perspective contradicts with the commission guidelines. Therefore, there is every reason to prohibit it as restrictive by object under article 1011 tfeu. As recent cases3 have reminded us, competition law, including eu and domestic competition law, is territorial in nature. Note t hat the direct effect of article 10 was confir med in. A significant risk for businesses fines intel, 1,060,000,000 remediesstructural and behavioral damages courage and crehan c45399. 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. Arguably, the ongoing controversies around the scope of article. Article 10 tfeu as a balancing instrument regardless of initial object or effect approach. 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.
Article 1011 prohibits any agreement or concerted practice formal or informal, written or unwritten that is made between. 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. However, in its analysis of the facts of this case, the oft has not only considered whether the. 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. Its core role is the regulation of monopolies, which restrict competition in private industry and produce worse outcomes for. State aid and tax rulings an assessment of the selectivity. Market failures, transaction costs and article 1011 tfeu. European union competition law university of london. Article 102 of the treaty on the functioning of the. How does article 10 tfeu case law relate to ec guidelines. The object approach is independent of the presence of buyer power.
I guess everyone should thank robert odonoghue and jorge padilla for the assistance they have provided to the competition community since the 1st ed. 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. The starting point of the analysis differs, but not the end result. A clarification of the law on rebates under article 102 tfeu. A commentary on article 102 tfeu by martin herz, hans h. 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. Traditional concerns of monopoly behaviour, such as predatory pricing, refusals to deal, excessive pricing, tying and bundling, discount practices and. 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. 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. 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.
Article 101, 102 formerly articles 81 and 82 and before. Fines for breaking eu competition law european commission. 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. The majority of cases involve a solution to the negative external effects on the environment. 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. On the first place the agreement in question should be scrutinized under art. Article 101 tfeu symmetric approach to input and output price fixing. In june 2014, the general court of the eu delivered its judgment in intel. Social costs of collusive price fixing outweigh the benefits. 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. Antitrust law by richard markovits is without doubt one of the most impressive academic commentaries on us and eu antitrust law. Internal dg competition working documents on procedures for the application of.
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. The concepts of dominance and abuse are the articles pivots and have been reinterpreted over the course of the history of the eu. Agreements having an anticompetitive object are exempted from an analysis of the anti. 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.
Dg competitions manual of procedure for the application of articles. Todays competition bible is clearly, and without the shadow of a doubt, the reference on article 102 tfeu. Learn vocabulary, terms, and more with flashcards, games, and other study tools. 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. Recent article 102 tfeu caselaw chillincompetition. Restrictions by object within article 102 tfeu and a. Particular restrictions that fall within the impugned category are therefore automatically seen as having the object of restricting competition under article 1011 tfeu.
Neergaard u 2007 modernising article 102 tfeuwith particular focus on public and otherwise privileged undertakings. The law and economics of article 102 tfeu robert odonoghue. 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. 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. See for example the approach in germany, enforcement signal as to the legality of price fixing. 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. The law and economics of article 102 tfeu robert o.
The antitrust manual of procedures does not contain binding instructions for. Dg competition is administratively organised in directorates, each consisting of three to five units. In this provision, an infringement includes agreements19 having as their object or effectthe prevention, restriction or distortion of competition. 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.
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. 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. Introduction it is difficult to draw the line between lawful and unlawful practices implemented by dominant firms. European commission, dg competition, private enforcement unit 8 indirect purchasers objective to ensure compensation for all categories of victims courage 2001, manfredi 2006. Proceedings for the application of articles 101 and 102 tfeu. This is a summary of the european law section and deals with article 102 tfeu. Efficiencies can be attained without the fixing of input price. In both cases, for eu law to apply at all, there must be the possibility of an effect on trade between mamber states. 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. The commissions notices on access to file 8 and handling of complaints. The tests of illegality under articles 101 and 102 tfeu. Treaty on european union teu, treaty on the functioning of the european union tfeu and regulations section 1 treaty on european union teu. 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. See to that extent article 120 tfeu, 119 tfeu and article 3 teu.
A practical approach to rebates 102 of the tfeu after the. 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. Request pdf is the guidance paper on the commissions enforcement priorities in applying article 102 tfeu to abusive exclusionary conduct useful. Article 102 tfeu is likely to have its origin in article 101 tfeu. Daniel jowell qc if there is a hard brexit2, will it still be possible to bring actions before the u. The european law blog aims to highlight, and comment on, current developments in eu case law and legislation. 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. Julia lindfors article 102 tfeu and online search engines 1 1. Its core role is the regulation of monopolies, which restrict competition in private industry and.