Competition law and policy in the EC and UK PDF
Preview Competition law and policy in the EC and UK
Competition Law and Policy in the EC and UK Competition law, at both the EC and UK levels, plays an important and ever- increasing role in regulating the conduct of businesses. Based on the premise that open and fair competition is good for both consumers and businesses, competition law prevents businesses from entering into anti-competitive agreements and from abusing a dominant market position. Competition Law and Policy in the EC and UK looks at how competition law affects business, including: co-ordinated action; pricing behaviour; takeovers and mergers; and state subsidies. It provides a clear guide to and outline of the general policies behind, and the main provisions of EC and UK competition law. Information is presented within a structured frame- work, complete with a glossary of useful terminology. This fourth edition has been revised and updated to take into account developments since publication of the previous edition, including expanded coverage of the regulation of cartels, the development of private enforce- ment, the consideration of IP issues in Microsoft, and extended discussion of UK competition law. Barry J Rodger is a Professor at the Law School, University of Strathclyde. Angus MacCulloch is a Senior Lecturer at the Law School, Lancaster University. Competition Law and Policy in the EC and UK Fourth Edition Barry J Rodger and Angus MacCulloch Fourth edition published 2009 by Routledge-Cavendish 2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN Simultaneously published in the USA and Canada by Routledge-Cavendish 270 Madison Avenue, New York, NY 10016 This edition published in the Taylor & Francis e-Library, 2008. “To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.” Routledge-Cavendish is an imprint of the Taylor & Francis Group, an informa business © 2009, 2004, 2001, 1998 Rodger, BJ and MacCulloch, A Previous editions published by Cavendish Publishing Limited First edition 1998 Second edition 2001 Third Edition 2004 All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Rodger, Barry J. Competition law and policy in the EC and UK / Barry J Rodger and Angus MacCulloch.—4th ed. p. cm. 1. Restraint of trade—European Union countries. 2. Antitrust law—European Union countries. 3. Restraint of trade—Great Britain. 4. Antitrust law—Great Britain. I. MacCulloch, Angus. II. Title. III. Title: Competition law and policy in the European Community and United Kingdom. KJE6456.R625 2008 342.24′072–dc22 2008021871 ISBN 0-203-92658-7 Master e-book ISBN ISBN 13: 978–0–415–45848–1 (hbk) ISBN 10: 0–415–45848–X (hbk) ISBN 13: 978–0–415–45847–4 (pbk) ISBN 10: 0–415–45847–1 (pbk) ISBN 13: 978–0–203–92658–1 (ebk) ISBN 10: 0–203–92658–7 (ebk) To Susan, Lucy, Kirsty, Euan, Coll and Baby Mac Contents Table of cases xv Table of legislation xxvii Table of statutory instruments xxxi Table of EC legislation xxxiii Table of decisions xxxix Abbreviations xlvii Preface xlix 1 Introduction to competition policy and practice 1 Competition law background 1 Monopoly 2 Cartels 2 Mergers 3 ‘Pure competition’ objective 3 State regulation – State aid 4 Economics of competition law and terminology 11 Politics of competition law 14 Competition policy objectives 16 Prevention of the concentration of economic power 16 Regulation of excessive profits and fairer distribution of wealth 17 Protection of consumers 17 Regional policy 18 Creation of unified markets and prevention of artificial barriers to trade 19 Small is beautiful 19 US antitrust law and policy 20 Development of Community competition law 22 Development of UK competition law 24 Criminal law 24 Statutory development 27 viii Competition Law and Policy in the EC and UK Comparison of competition law objectives under Community and UK law and policy 29 Community competition policy objectives 29 UK competition policy objectives 31 Further reading 33 Competition policy general 33 The consumer interest and competition policy 33 EC competition policy development 33 UK competition policy development 34 US background 34 Discussion 34 2 Enforcement of Community and UK competition law 35 Introduction 35 EC enforcement framework 36 Outline 36 Decentralised Community competition enforcement 39 Relationship between Community and national law 43 The European Commission 46 Initiation 48 Decision-making 56 Rights of the defence 60 Review of Commission decision-making 62 Ancillary enforcement issues 65 Administrative enforcement in the UK 66 Introduction 66 The Competition Act 1998 67 Competition Appeal Tribunal (CAT) 74 The Enterprise Act 2002 76 Initiation 76 Investigation and reporting 79 Enforcement 80 Cartel offence investigations and director disqualification 81 Private enforcement of EC and UK competition law 83 Co-operation between courts and authorities 89 Globalisation and extraterritoriality 90 Extraterritoriality 90 Subject matter jurisdiction 91 Community competition law and extraterritoriality 92 Resistance to extraterritorial application 94 International co-operation and global competition rules 95 Contents ix Further reading 97 Regulation 1/2003, The Network Notice and the ECN 97 UK competition law reform, the Competition Act 1998 and the Enterprise Act 2002 97 Private enforcement 98 Globalisation 98 Discussion 98 3 The control of dominance 101 Introduction to Art 82 of the EC Treaty 101 Undertakings and the effect on trade between Member States 102 Dominant position 104 The relevant market 104 Dominance 110 Barriers to entry 112 Criticism 116 Abuse 117 Exploitative abuses 119 Excessive prices 119 Unfair conditions 120 The quiet life 121 Exclusionary abuses 121 Export bans 123 Pricing strategies 123 Tying and leverage 128 Mergers 129 Refusal to supply 130 Intellectual property rights 134 Collective dominance 136 Control of dominance in the UK 141 Introduction 141 Reform of UK anti-monopoly laws 141 The Competition Act 1998 – the Chapter II prohibition 143 Consistency with Community law 145 Guidelines on the prohibition 146 Practice and case-law to date 147 The Enterprise Act 2002 155 Investigation and information gathering 155 Market investigation references 156 The reference test: prevention, restriction or distortion of competition 157 The reporting stage 158
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