EU & UK Competition Law

673 Pages·2013·22.933 MB·English

by  Cosmo Graham

Second “Graham’s EU and UK Competition Law is a valuable
Graham’s EU and UK Competition Law is an extremely well presented text, with authoritative structure, edition addition to the market and an excellent student textbook
accuracy and precision…an excellent product that I will be recommending for my courses. on competition law… highly recommended for any
students of competition law.”
Professor Chris Bovis, University of Hull E
Student Law Journal
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… an excellent alternative to Whish, by an author who has an exceptional understanding of the subject
and who explains the more complicated concepts well.
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Dr Andreas Stephan, University of East Anglia
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…very accessible use of language and ability to explain complex concepts with clarity without d
sacrifi cing depth…content is of a high standard and student feedback on it has been very good…the

pedagogical features within chapters work well including the use of relevant and topical case studies. U
Dr Jonathan Galloway, Newcastle Law School
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EU and UK Competition Law is the perfect companion to your study of competition law. Written by a leading
expert in the fi eld, this contemporary textbook: m
 gives you a thorough understanding of the key laws and policies at play in this area
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 introduces you to the key economic principles needed to understand the subject
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 considers the theories and academic debates that underpin the legal rules
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 draws upon comparative examples from other jurisdictions, such as US Anti-trust law, to illustrate alternative i
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approaches to regulation
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 highlights how competition law works in practice by analysing high-profi le cases, including the price fi xing of o
dairy products and replica football kits, amongst many others
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 includes extracts from key legislation, treaties, cases and offi cial guidance that you’ll need to consult as part of

your studies. L
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This new edition has been fully updated with all the latest developments in this rapidly moving subject area. It
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also includes expanded coverage of cartels, within a dedicated chapter. Full coverage of the UK cartel offence, and
merger control in both the EU and UK ensures this text maps fully to the syllabus of competition law modules. Second edition
ABOUT THE AUTHOR: EU and UK
Cosmo Graham is Professor of Law at the University of Leicester, and a competition lawyer who specialises in
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the law relating to the regulation of public utilities. He is also Director of the Centre for Consumers and Essential r
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Services, a member of the Competition Law Association, and co-editor of the Utilities Law Review.
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Competition Law
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For further resources accompanying this text, please visit
www.pearsoned.co.uk/legalupdates
Cosmo Graham
To fi nd out how law is changing at Pearson, visit
www.pearsoned.co.uk/lawischanging www.pearson-books.com
Cover image © David Buffi ngton/Corbis
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EU and UK Competition Law
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EU and UK Competition Law
Second Edition
Cosmo Graham
University of Leicester
iii
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PEARSON EDUCATION LIMITED
Edinburgh Gate
Harlow CM20 2JE
United Kingdom
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Web: www.pearson.com/uk
First published 2010 (print)
Second Edition published 2013 (print and electronic)
© Pearson Education Limited 2010 (print)
© Pearson Education Limited 2013 (print and electronic)
The right of Cosmo Graham to be identified as author of this work has been asserted
by him in accordance with the Copyright, Designs and Patents Act 1988.
The print publication is protected by copyright. Prior to any prohibited reproduction, storage in a retrieval
system, distribution or transmission in any form or by any means, electronic, mechanical, recording or
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The ePublication is protected by copyright and must not be copied, reproduced transferred, distributed,
leased, licensed or publicly performed or used in any way except as specially permitted in writing by
the publishers, as allowed under the terms and conditions under which it was purchased, or as strictly
permitted by applicable copyright law. Any unauthorised distribution or use of this text may be a direct
infringement of the author’s and the publishers’ rights and those responsible may be liable in law accordingly.
Contains public sector information licensed under the Open Government Licence (OGL) v1.0.
www.nationalarchives.gov.uk/doc/open-government-licence.
Pearson Education is not responsible for the content of third-party internet sites.
ISBN: 978-1-4479-0444-1 (print)
978-1-4479-0445-8 (PDF)
978-1-292-00341-2 (eText)
British Library Cataloguing-in-Publication Data
A catalogue record for the print edition is available from the British Library
Library of Congress Cataloging-in-Publication Data
Graham, Cosmo.
EU and UK competition law / Cosmo Graham. -- Second Edition.
pages cm
ISBN 978-1-4479-0444-1 (pbk.)
1. Antitrust law -- Great Britain. 2. Antitrust law -- European Union countries. 3. Antitrust law -- United States.
I. Title. II. Title: European Union and United Kingdom competition law.
KD2218.G73 2013
343.4107′24--dc23
2013002364
10 9 8 7 6 5 4 3 2 1
16 15 14 13 12
Print edition typeset in 9/12.5pt ITC Giovanni by 35
Print edition printed and bound in Great Britain by Ashford Colour Press Ltd, Gosport, Hampshire
NOTE THAT ANY PAGE CROSS-REFERENCES REFER TO THE PRINT EDITION
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Brief contents
Preface xii
Tables of equivalences xiii
Guided tour xvi
Acknowledgements xix
Table of cases xx
Table of European legislation xxxv
Table of UK legislation xliv
Table of US legislation xlviii
Table of international agreements xlix
1 Introduction to competition law and policy 1
2 The prohibition on anti-competitive agreements 58
3 Abuse of a dominant position: introduction and pricing abuses 120
4 Abuse of a dominant position: exclusive dealing and non-pricing abuses 167
5 Public enforcement of competition law 200
6 Private enforcement of competition law 245
7 Competition law and the state 268
8 The control of cartels 320
9 Horizontal cooperation agreements 348
10 The control of oligopolies 363
11 Distribution agreements 388
12 Intellectual property and competition law 433
13 Merger control in the EU 477
14 Merger control in the UK 517
15 Competition law and energy and telecommunications 547
16 The international dimensions of competition law 583
Appendix: Competition law on the Web 604
Glossary of economic terms 605
Index 610
vv
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Contents
Preface xii
Table of equivalences xiii
Guided tour xvi
Acknowledgements xix
Table of cases xx
Table of European legislation xxxv
Table of UK legislation xliv
Table of US legislation xlviii
Table of international agreements xlix
1 Introduction to competition law and policy 1
Chapter outline 1
Introduction 1
Objectives of competition law and policy 5
The institutions of competition law in the EU and UK 31
The relationship between EU and UK competition law 46
Summary 55
Further reading 56
2 The prohibition on anti-competitive agreements 58
Chapter outline 58
Introduction 58
Article 101 TFEU: preliminary issues 60
The concept of an undertaking 67
Agreements, decisions by associations of undertakings and concerted practices 76
Restrictions on competition 87
Individual exemptions 107
Summary 117
Further reading 118
3 Abuse of a dominant position: introduction and pricing abuses 120
Chapter outline 120
Introduction 120
Article 102 TFEU: market definition and dominance 124
Abuse: introduction 134
Objective justification and efficiency 136
Excessive pricing 141
Low or predatory pricing 147
Selective low pricing 157
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CONTENTS
Margin squeeze 158
Summary 163
Further reading 165
4 Abuse of a dominant position: exclusive dealing and
non-pricing abuses 167
Chapter outline 167
Introduction 167
Exclusive dealing, price discrimination, discounts and rebates 167
US law on exclusive dealing and discounts 176
Tying and bundling 177
US law on tying 182
Refusals to supply and essential facilities 185
UK cases on refusal to supply 194
US law on refusal to supply and essential facilities 195
Conclusions 197
Summary 197
Further reading 198
5 Public enforcement of competition law 200
Chapter outline 200
Introduction 200
European Commission procedures 204
Judicial review of European Commission decisions 221
Human rights and EU enforcement procedures 223
Allocation of cases between the European Commission and national
competition authorities 225
Enforcement in the United Kingdom by the OFT 228
Judicial review of OFT decisions by the Competition Appeal Tribunal 241
Summary 243
Further reading 244
6 Private enforcement of competition law 245
Chapter outline 245
Introduction 245
Using competition law as a defence 249
Competition law as the basis for an action 250
Conditions for liability 253
Follow-on actions 259
Conclusions on private enforcement 262
Summary 266
Further reading 267
7 Competition law and the state 268
Chapter outline 268
Introduction 268
State actions contrary to Articles 101 and 102 TFEU 270
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CONTENTS
Article 106 TFEU 273
State aids 288
Summary 318
Further reading 319
8 The control of cartels 320
Chapter outline 320
Introduction 320
Economic issues surrounding cartels 321
Legal issues in the control of cartels 324
Enforcement in the EU and UK 333
Summary 346
Further reading 347
9 Horizontal cooperation arrangements 348
Chapter outline 348
Introduction 348
European Commission Guidelines on horizontal cooperation agreements 349
Summary 361
Further reading 362
10 The control of oligopolies 363
Chapter outline 363
The economic problem: the prisoner’s dilemma 363
The legal problem 366
Alternative devices to investigate oligopolistic markets 375
Conclusions 386
Summary 387
Further reading 387
11 Distribution agreements 388
Chapter outline 388
Introduction 388
Economic issues in relation to vertical agreements 389
The approach to vertical agreements under Article 101(1) TFEU 395
Vertical agreements with the object of restricting competition:
absolute territorial protection and export bans 398
Agreements which have the effect of restricting competition 401
The block exemption on vertical agreements 414
Treatment of vertical agreements under UK law 427
Conclusions 430
Summary 431
Further reading 432
12 Intellectual property and competition law 433
Chapter outline 433
Introduction 433
ix
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