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An undertaking is dominant if it has substantial market power on the relevant market such that it can behave to an appreciable extent independently of its competitors, customers and ultimately of its consumers.
Dominance is a necessary prerequisite before conduct can be considered to be abusive and thereby prohibited under Article 102 TFEU and/or the Competition Act 1998, s 18. Factors in determining dominance include market shares, barriers to entry and buyer power.
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Assessing technology transfer agreements—checklist This Checklist can be used to help assess the compliance with EU competition law of technology transfer agreements where one party (a licensor) grants to another party (the licensee) the right to exploit intellectual property (including patents, know-how, design rights, utility models and/or software copyright). See further, Assessing IP-related agreements under the Technology Transfer Block Exemption Regulation. Framework for assessment The European Commission (Commission) has published Guidelines (TTBE Guidelines) which assist parties to assess the application of the technology transfer block exemption (TTBE). When considering the exercise and licensing of intellectual property rights (IPRs), it is necessary to consider the following: • Article 101 TFEU ◦ The first question is whether the agreement is caught by Article 101(1) TFEU at all (in practice TTBE (and relevance of other block exemptions) may often be considered before Article 101 TFEU). It will be necessary to consider: ‣ Whether the agreement is liable to affect trade between Member States. ‣ Whether the agreement restricts competition at all as...
Assessing an undertaking’s market power—checklist This Checklist set out factors that are relevant for assessing a given undertaking’s market power. Such an assessment is not only relevant for mergers, but also, for example, when assessing whether an undertaking is deemed to be dominant. Does an undertaking have market power? The following factors should be taken into account when assessing whether an undertaking has market power. Not all of these factors have to be taken into account in every case—eventually, a case-by-case analysis based on relevant market characteristics is required. Market position of undertaking and its competitors • Calculation of market shares is usually the starting point of any analysis ◦ The higher the market share and the longer the period of time over which it is held, the more likely that undertaking has a dominant position ◦ 50% market share or more: usually evidence of existence of a dominant market position ◦ 40–50% market share: can indicate market power, but depends on additional factors ◦ below 40% market share:...
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Case T- 699/14 Topps Europe v Commission (rejection of complaint) [Archived] CASE HUB ARCHIVED—this archived case hub reflects the position at the date of the judgment of 11 January 2017; it is no longer maintained. See further: timeline and relevant/related cases Case facts Outline Appeal to the General Court seeking annulment of the Commission decision of 15 July 2014 rejecting a complaint brought by Topps Europe (a producer of football collectibles) which alleged that FIFA, UEFA and four national football federations license their rights for the World Cup and Euro football tournaments to Panini SpA (a competitor of Topps) in an anti-competitive way (in breach of Articles 101 and 102 TFEU). The Commission decided not to open an in-depth investigation on the basis of enforcement priorities and, as part of this consideration, its determination that there was a limited likelihood of establishing the existence of an infringement. This case focuses on the Commission's procedure and discretion for dealing with competition law complaints. Latest development On 11 January 2017, the General Court dismissed...
Ireland behavioural investigations—closed cases tracker This table summarises all completed investigations by Ireland’s competition authority (the Competition and Consumer Protection Commission—CCPC) into alleged cartels, anti-competitive agreements and abuses of dominant positions (Articles 101/102 TFEU and national equivalents) since 2015. Note—only investigations that have been made public are included in this table. 2024 Investigations under Article 101 TFEU/Section 4 of the Competition Act 2002 Case name, companies under investigation and industry Issues Developments The CCPC did not issue any decisions under Article 101/section 4 in 2024 Investigations under Article 102 TFEU/Sections 5-7 of the Competition Act 2002 Case name, companies under investigation and industry Issues Developments The CCPC did not issue any decisions under Article 102 TFEU/section 5 in 2024 2023 Investigations under Article 101 TFEU/Section 4 of the Competition Act 2002 Case name, companies under investigation and industry Issues Developments The CCPC did not issue any decisions under Article 101TFEU/section 4 in 2023 Investigations under Article 102 TFEU/Sections 5-7 of the Competition Act...
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Message from CEO on introduction of competition law compliance policy From [[insert job title], ][insert name] 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. 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. How does this affect us? Competition law may become an issue for [insert organisation...
An introduction to competition law compliance—a guide for staff What is competition law? Competition benefits both businesses and consumers. It 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. These can include heavy fines, prison sentences, director disqualifications and reputational damage. When is it an issue? Competition law may become an issue for organisations in three main contexts:cartels—these are usually based on horizontal arrangements where two or more businesses agree, whether in writing or otherwise, not to compete with each other. Cartels are the most serious type of anti-competitive agreements. They include agreements to fix prices, engage in bid-rigging, limit production and share customers or markets. A cartel may also arise where there is a...
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In a written intellectual property licence that satisfies the English law requirements for creation of a contract and that is not in conflict with competition laws, can royalties be contractually agreed to be paid in perpetuity? It has been assumed that this Q&A refers to validly created licences and individual IP right licence requirements (ie whether must be in writing and signed etc) have not been covered. As such in conducting our research, we have focused on IP licence agreements in which royalties are payable. There are many different types of UK IP licence. Such licences are governed by IP right specific laws such as the Copyright, Designs and Patents Act 1988, the Patents Act 1977 or the Trade Marks Act 1994. Technology transfer licensing is subject to UK and EU competition laws. Licences are also governed by common law. A perpetual licence may be granted (and the payment of royalties tied to the term of the licence). However, the period of the licence cannot extend the...
What is dynamic pricing and is it legal? What is dynamic pricing? Dynamic pricing is a pricing strategy in which businesses set flexible prices for products or services based on current market demands. The price changes are carried out by software which collects data and uses algorithms to adjust pricing according to business rules. Those business rules take into account factors such as the time of day, or day of the week; the customer’s location, the level of demand for the product or other prices in the market. It might also depend on other factors such as the weather on a given day. This analysis is often designed to give businesses the best price yields possible at any given time. Examples of where it is widely used are transport, eg air fares, and Uber taxi fares. It also takes place on websites such as Amazon. On high volume sales days such as Black Friday, prices may change multiple times during the day. What are the legal issues? In principle,...
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Competition analysis: On 24 October 2024, the Court of Justice delivered its long-awaited judgment in Commission v Intel Corporation (Case C-240/22 P). In a high-profile finding against the Commission, the case focused on the application of Article 102 TFEU and the ‘as efficient competitor’ (AEC) test to exclusivity rebates. The judgment is notable in light of the EC draft Guidelines on the application of Article 102 TFEU to abusive exclusionary conduct by dominant undertakings that were published shortly beforehand. The Guidelines attribute a presumption of likely exclusionary conduct to rebates of the type adopted by Intel between 2002 and 2007. Significantly, the Court of Justice judgment appears to reverse this by adopting an effects-based approach. It affirmed the General Court’s conclusion that loyalty rebates provided by a dominant entity are not per se abusive. Rather, a full assessment of their actual or potential effects on competition must be conducted. For Intel, a US company that designs, manufactures and sells processors and other semiconductor components, the judgment upholds the annulment of...
A round-up of EU competition law developments, including (1) the Court of Justice’s judgment clarifying jurisdiction in competition damages actions under the Recast Brussels Regulation, and (2) Court of Justice’s judgment setting aside the General Court’s judgment regarding the Commission’s decision approving aid to Timișoara Airport in favour of Wizz Air and refers the case back to the General Court
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