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under Article 102 TFEU and concentrates on the improvement of the Commission's competition policy towards abuse of dominance cases in digital markets and discusses whether the policy as it stands is appropriate in dealing with the abuse of dominance in the web based economy and where adjustments are needed. Article 101 TFEU touches upon coordinated behaviour (between undertakings), whereas Article 102 concerns the unilateral action of an undertaking. The 2014 judgment of the GC in Intel epitomises, better than any other, this reluctance. obligation to test Article 102 TFEU cases under the As Efficient Competitor (“AEC”) framework, as set out in the 2009 Guidance Paper. Assessing an abuse always requires taking into consideration all the relevant circumstances in accordance with the criteria established in the case-law of the CJEU. Hilti = abused its dominant position by making the purchase of the cartridge strips used in its nail guns conditional on the buyer also purchasing the corresponding complement of nails. The scope of Article 102 TFEU is sufficiently broad to take into account issues relating to privacy and data protection. (ex Article 89 TEC) CHAPTER 2 … After the Brexit transition period has ended, the general competition law provisions of Article 101 (prohibiting anti-competitive agreements) and Article 102 (prohibiting abuse of dominance) of the TFEU will cease to apply in the UK (although see the discussion of ongoing investigations below). A dominant company infringes article 102 of the TFEU only if it abuses its dominance to restrict competition. The judgments handed down by the Union courts in Intel v Commission and Post Danmark II do not alter in any way the ... explained 20 Article ”.. ”. The Application of Article 102 TFEU by the European Commission and the European Courts Romano Subiotto QC, and David R. Little* I. Article 102. Article 102 of the TFEU does not define the concept of abuse. Article 102 of the Treaty on the Functioning of the European Union explained. Examples of Abuse Article 102 contains a list of examples of abuses but the list is non-exhaustive. (ex Article 86 TEC) SECTION 2 AIDS GRANTED BY STATES. 101: Clarification – ICI v Commission was case where ECJ held there was an “oligopoly” or that producers of specialist dyes tended to be oligopolistic in a market with 10 producers with 80% of the market share who raised prices simultaneously in Keywords: Google, Article 102 TFEU, New Economy, competition law. In this case the Commission considered, whether extension of 1 Karayigit, 2009, p. 575. (ex Article 88 TEC) Article 109. The TFEU does not actually define the term ‘undertakings’, but this has been interpreted broadly to include natural and legal persons engaged in commercial activity for … . Competition Law Webinar Article 102 1. Article 102(d) TFEU (prohibited) Example case for tie-in agreement having the effect of excluding competitors from the market? The Commission has recently acted under Article 102 TFEU (ex Article 82 EC) against firms filing patent applications. Another example is found in Article 102 TFEU case law. Article 102 TFEU (ex Article 82 EC, ex Article 86 EC) “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. In this provision, an infringement includes agreements19 having as their object or ef- This article examines the European Commission’s recent reform of its application of Article 102 TFEU (the prohibition of abuse of dominance). A legal perspective on Article 102 TFEU case law 3 Guidance5 that was eventually adopted represent a clear commitment to bringing administrative action in line with mainstream economics.6 Contrary to what happened in other areas of EU competition law,7 the efforts to clarify the enforcement priorities of the Commission have not put an end to the controversies around the (ex Article 87 TEC) Article 108. A brief history of Article 102 TFEU Today, the Bundesgerichtshof (German Federal Court of Justice) has sided with the Bundeskartellamt against Facebook ( see ). Article 102 TFEU deals with the unilateral conduct of undertakings with substantial market power and prohibits one or more undertakings which hold a dominant position in the internal market or a substantial part of it abusing that position insofar as it may affect inter-Member State trade. 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. Article 102(a) TFEU bars dominant companies from “directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions”. Article 102 TFEU Article 102 TFEU (ex Article 82 EC, ex Article 86 EC) “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 … 3 Greek Lignite, 2014. Using the Commission’s own reform documents and in particular the Guidance on enforcement priorities as the The Standard in Article 101 TFEU; A Potential Reference Point for Article 102 TFEU Identifying some types of conduct as having an anti-competitive object within Article 102 TFEU is likely to have its origin in Article 101 TFEU. b. Competition Law: Art. 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. To understand the logic behind this case law, it makes sense to discuss the reason why an authority or a claimant is not required to establish, on a case-by-case basis, the anticompetitive effects of ‘by object’ conduct. (ex Article 82 TEC) Article 103. After all, Article 102 TFEU comes into play in instances where the conditions of competition are already weakened. Article 103 (ex Article 83 TEC) 1. Clarification on Art. 32 As explained above, the ECJ has long held—e.g. It prohibits restrictive agreements between independent market operators acting either at the same level of the economy (horizontal agreements), often as actual or potential competitors, or at different levels (vertical agreements), mostly as producer and distributor. Finally, the Commission’s Guidance on the Enforcement of Article 102 by Dominant Undertakings 2009 17 provides that there is no abuse constituting a per se breach of Article 102/TFEU, so we now have to consider various examples. Suggested Citation: Suggested Citation. (ex Article 85 TEC) Article 106. By doing so, the Court has deemed the absence of causality link between Facebook’s size on the market and its practice irrelevant. The Political and Sociological Context. Under Article 102 TFEU, if any party is in a dominant position and abusses that position, the matter will be dealt with. The scheme of Article 101 TFEU. 2. (ex Article 84 TEC) Article 105. Article 101(2) states that a violation has occurred unless it meets the criterion given in Article 101(3). This coordination may take several forms, but the Finally, Article 106(3) TFEU is a peculiar legal basis, allowing the Commission to adopt directives and decisions in order to implement the rules set out in the precedent paragraphs. The appropriate regulations or directives to give effect to the principles set out in Articles 101 and 102 shall be laid down by the Council, on a proposal from the Commission and after consulting the European Parliament. 3. The only anti-competitive impact of such contracts is usually when there is inadequate inter-brand competition [Inter-brand competition relates to … Introduction At the end of 2012, there were a total of 30 active Article 102 TFEU dossiers. very much alive in the context of Article 102 TFEU, this is primarily explained by the observed reluctance of EU courts to embrace the enforcement principles on which the Discussion Paper and the Guidance are based. Article 107. JEL Classification: K21. Article 101; Article 102; Article 103; Article 104; Article 105; Article 106; Full text of the European Treaties. 102 TFEU 2. (ex Article 83 TEC) Article 104. Verhaert, Joyce, The Challenges Involved with the Application of Article 102 TFEU to the Market for Search Engines as Part of the New Economy and the Implications for the Google-Case (August 30, 2013). DEI is important for the first limb of Article 106 when applied in combination with Article 102 TFEU. 2.1 Article 102 TFEU 2.1.1 Introduction Article 102 TEFU provides: “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 … In other words, the Court has clarified that what is true under Article 101 TFEU is also true under Article 102 TFEU. Article 101 TFEU is one of the three pillars of EU competition law. 2 Szyszczak, 2009, p. 1741. Article 30 of the Treaty on the Functioning of the European Union [1] was introduced as part of the provisions relating to the free movement of goods. effectiveness of Article 102 TFEU (and thus lead to State liability under Article 106(1) TFEU) could be traced back to Dutch Courier Services6 decision adopted by the Commission in 1989. Section 5 concludes.

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