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The abuse of dominance is any abuse by one or more undertakings of a dominant position they hold within the internal market or in a substantial part of it, which may affect trade between member states, and which is prohibited under article 102 of TFEU, as incompatible with the Internal Market.
An undertaking is considered to be in a dominant position within a market when it has a significant market share (position of strength) and is able to evade normal competition on it. The dominant position itself is not illegal; however the abuse of this dominant position (predatory pricing, discrimination of commercial partners) is prohibited.
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What to think about before bringing a private competition action—checklist Is there an actionable claim? Note: private competition actions remain largely regulated by national law and procedural and substantive rules across the EU may vary significantly, therefore assessments in individual jurisdictions will need to be made when planning competition litigation. Possible causes of action • Consider if there is an infringement of UK competition law (or EU competition law prior to the end of the Brexit transition period). ◦ Consider whether the loss suffered can be attributed to an agreement or concerted action between undertakings, especially competing undertakings (see further, The prohibition on restrictive agreements). ◦ Consider whether the loss might have been caused by an entity that is arguably dominant typically with a large share of a relevant market, and could be said to have abused its dominance contrary to Chapter II of the Competition Act 1998 (and/or Article 102 TFEU if prior to the end of the Brexit transition period) (see further, The prohibition on abuse of dominance)....
Vertical agreements—checklist This Checklist can be used to help assess compliance of vertical agreements with EU competition law, including under the Vertical Block Exemption Regulation 2022/720 (VBER 2022). For an assessment of the VBER 2022, see further, Introduction to the application of Article 101 TFEU to vertical agreements and The Vertical Block Exemption Regulation 2022/720 Framework for assessment When considering the application of EU law to vertical agreements, it is necessary to consider: • The competition rules under Article 101 TFEU: ◦ Whether the agreement is caught by Article 101(1) TFEU at all (although in practice the VBER 2022 (and other block exemptions) may often be considered before Article 101 TFEU). ◦ Whether the agreement restricts competition at all (this is often overlooked)—some forms of agreement may not be restrictive of competition. Also, agency will fall outside Article 101 TFEU where there is a genuine agency situation (caution is advised here as restrictions in an agency agreement may still fall foul of Article 101 TFEU). See further, Introduction to...
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The below tracks live European Commission behavioural investigations (under Articles 101 and/or 102 TFEU) and sector inquiries.NOTE—only investigations that have been made public are included in this table.NOTE—completed investigations are moved from this document to the case trackers for closed cases within seven days of the final Commission decision.For completed investigations, see Article 101 TFEU investigations—closed cases tracker and Article 102 TFEU investigations—closed cases tracker.For details of appeals before the General Court, see General Court appeals—ongoing cases tracker. For details of appeals before the Court of Justice, see Court of Justice appeals—ongoing cases tracker.Investigations under Article 101 TFEUCase name, companies under investigation and industry Issues DevelopmentsA++ transatlantic joint venture (AT.40940)Lufthansa, United Airlines and Air CanadaScheduled passenger flightsRestrictive agreements—joint venture for trans-Atlantic flights• Supplementary statement of objections issued to Lufthansa—15/01/2024• Formal investigation launched and statement of obections issued to Lufthansa—07/08/2024Data centre constructionUnknownRestrictive agreements—no-poach agreements• Dawn raids carried out—18/11/2024Financial derivativesUnknownRestrictive agreements• Dawn raids carried out—24/09/2024Online food deliveryDelivery Hero and GlovoRestrictive agreements• Formal investigation launched—23/07/2024• Dawn raids carried out—21/11/2023• Dawn raids carried out—06/07/2022Consumer...
Case C- 617/17 Powszechny Zakład Ubezpieczeń na Życie S.A. w Warszawie v Prezes Urzędu Ochrony v Prezes Urzędu Ochrony (double jeopardy) [Archived] CASE HUB—this archived case hub reflects the position at the date of the decision of 3 April 2019; it is no longer maintained. See further, timeline, commentary, and related/relevant cases. Case facts Outline Case C- 617/17 Powszechny Zakład Ubezpieczeń na Życie-a national reference from Poland seeking clarification on the principle of double jeopardy (ne bis in idem) and how this is applied in parallel competition investigations. Latest developments On 3 April 2019, the Court of Justice delivered its judgment in Case C- 617/17 Powszechny Zaklad Ubezpieczeń na Zycie S.A., a national reference from Poland seeking clarification on the principle of ne bis in idem (double jeopardy) and how it is applied in circumstances where a national competition authority (NCA) has imposed a fine on an undertaking for anti-competitive conduct based on the parallel application of national and EU competition law. In this ruling,...
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Competition law compliance—warning signs for staff Behaviour red flags are situations which should cause you to ask questions. Although difficult to detect, there are many circumstances that signal the existence of anti-competitive behaviour. This awareness tool features possible competition law warning signs, flags, characteristics or behaviours to watch out for. Even just one of these red flags may be a sign of anti-competitive behaviour. 1 Cartel behaviour Any attempt to fix prices; Any attempt to engage in bid-rigging; Any attempt to limit production; Any attempt to share customers or markets; Any attempt to standardise products (while product standardisation can be pro-competitive, it can in some instances also be classified as anti-competitive if, for example, the standards are only available to certain competitors); Attendance of trade association meetings (while attending meetings of trade or industry associations can be entirely legal and serve pro-competitive purposes, they can also provide opportunities for competitors to exchange competitively-sensitive information or
Message from CEO on introduction of competition law compliance policy Date: [insert date] From: [Insert name and job title] Competing fairly benefits both businesses and consumers. Competition shows companies where they need to improve and encourages organisations to strive for greater efficiency, become more innovative, more productive, and ultimately be better businesses. Competition law is designed to protect businesses and consumers from anti-competitive behaviour, and safeguard effective competition. All businesses must comply with competition law and there can be serious consequences for businesses and individuals, including directors, for non-compliance, including heavy fines, prison sentences, director disqualifications and reputational damage. 1 What is competition law compliance? Competition law is designed to protect businesses and consumers from anti-competitive behaviour, and safeguard effective competition in the markets in which they operate. All businesses must comply with competition law and there can be serious consequences for businesses and individuals for non-compliance, including heavy fines, prison sentences, director disqualifications and reputational damage. 2 How does this affect us? Competition law may become...
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In the context of an English law agreement what is a ‘preferred supplier’? Might there be any regulatory issues to consider in connection with the appointment of a ‘preferred supplier’? What is the meaning of ‘preferred supplier’? The term ‘preferred supplier’ is often used in business, however it has no definitive or clear meaning in English law. Differing views of the meaning of the term are possible. For example the phrase might be intended to mean that the supplier would fall into one or more of the following (often mutually conflicting) categories or have some other meaning: • it may not be offered any work but is on an ‘approved’ list and so does not have to repeat certain retendering exercises • if offered work, it will be offered terms of trade that are no less favourable than those offered to any other supplier • it will always be offered certain work unless a competing supplier offers better terms • it will be offered a minimum...
Under standard terms & conditions of sale of goods, where the purchaser is a retailer or wholesaler, can you prohibit resale of goods through third party platforms such as Amazon? This Q&A relates to competition law restrictions applicable between businesses in the UK. Practice Note: Business to business e-commerce—legal issues explains that those involved in e-commerce need to ensure that their activities comply with applicable competition and anti-trust laws throughout the supply chain in all relevant jurisdictions. You may find it helpful to refer to Practice Notes: • EU and UK Competition law and the online sector [Archived] • Analysing vertical
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This week's edition of Competition weekly highlights includes, from a UK perspective: (1) the Government publishing the Enterprise Act 2002 (Amendment of Section 58 Considerations) Order relating to the application of public considerations in media mergers, and (2) the CAT’s judgment finding that Mastercard and Visa’s unregulated Multilateral Interchange Fees is an object infringement under UK and EU competition law. This week's highlights also includes, from an EU perspective: (1) a General Court judgment dismissing an action against Commission’s decision to investigate, under Article 22 EUMR, Brasserie Nationale/Boissons Heintz merger; (2) the Court of Justice judgments confirming the General Court’s judgment on the Commission’s decision to approve the acquisition of certain E.ON generation assets by RWE, (3) a General Court judgment dismissing two appeals against Commission’s re-adopted decision on Spanish DTT aid, (4) the Court of Justice judgment upholding an annulment of the Commission’s decision on Spanish tax scheme for indirect acquisitions of shareholdings in foreign companies, and (5) the Commission announces agreement with EIB Group on application of State...
This week's edition of Competition weekly highlights includes, from a UK perspective: (1) the CMA’s decision to consult on proposed changes to its jurisdiction and procedure guidance and the mergers notice template, (2) the CMA’s decision to conditionally clear the GXO/Wincanton merger, (2) publication by the CMA of guidance documents for businesses relating to merger control, (3) the CMA’s decision to launch a market study relating to civil engineering for roads and railways, (4) the CMA’s proposal to designate Google with SMS under the DMCCA 2024, and (5) publication by the UK government of a policy paper in support of its Modern Industrial Strategy. This week's highlights also includes, from an EU perspective: (1) an AG opinion proposing to uphold the General Court’s €4.12bn fine on Google for Android-related abuse of dominance, (2) the Commission’s decision to refer the Mars/Kellanova merger for a phase II investigation, (3) the Commission’s decision to unconditionally clear the Liberty Media/Dorna Sports merger after a phase II investigation, (4) the General Court’s judgment dismissing Ryanair’s...
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