The interface between competition and the internal market : market separation under article 102 TFEU / Vasiliki Brisimi.
2014
KJE6456 .B757 2014 (Map It)
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Details
Title
The interface between competition and the internal market : market separation under article 102 TFEU / Vasiliki Brisimi.
Published
Oxford, United Kingdom : Hart Publishing, 2014.
Call Number
KJE6456 .B757 2014
ISBN
184946569X
9781849465694
9781849465694
Description
xxxii, 239 pages ; 25 cm.
System Control No.
(OCoLC)870990837
Summary
This text explores the interface between competition law and market integration in the application of Article 102 TFEU, focussing on the notion of 'market separation' - namely conduct that may hinder cross-border trade.
Note
This text explores the interface between competition law and market integration in the application of Article 102 TFEU, focussing on the notion of 'market separation' - namely conduct that may hinder cross-border trade.
Bibliography, etc. Note
Includes bibliographical references (pages 219-236) and index.
Record Appears in
Table of Contents
Acknowledgements
v
Table of Cases
xiii
Table of Legislation
xxix
Table of Conventions
xxxiii
Introduction
1
I.
Interface between Competition and the Internal Market: Market Separation under Article 102 TFEU
1
II.
Methodological Remarks on the Analysis of `Market Separation under Article 102 TFEU'
2
A.
Factual Scenarios within the Compass of Market Separation Cases under Article 102 TFEU
3
B.
Definition of the Internal Market
4
C.
Significance of the Type of Enforcement Proceedings: Public and Private Enforcement of Article 102 TFEU
5
III.
Summary of the Chapters of this Book
7
1.
Objectives of Article 102 TFEU and Market Integration: From a Historical Analysis to the Current Jurisdictional Approach
9
I.
Introduction
9
II.
Objectives of EU Regulation of Unilateral Anti-competitive Conduct (Article 102 TFEU)
10
A.
Competition and Economic Efficiency: A Trade-Off between Present and Future Consumers
10
B.
Competition and Economic Freedom: A Trade-Off between Intermediate Buyers and End-Consumers
14
III.
Linking the Objectives of Article 102 TFEU to EU Trade Liberalisation
17
A.
Delimitation of the Notion of `Market Integration' in the EU
17
B.
Market Integration: Not a Stand-Alone Objective of Article 102 TFEU
19
C.
Teleological Interpretation of `Abuse of a Dominant Position': The Vehicle Linking Competition to Market Integration
26
IV.
`Effect on Trade': An Analytical Approach to Jurisdictional Elements with the Advantage of Hindsight
28
A.
Jurisdictional Function of the Requirement of `Effect on Trade'
28
B.
`Effect on Trade' Test: Identical to or Distinct from the Test under Article 34 TFEU for MEQR?
30
C.
`Effect on Trade' Test as Distinct from the Substantive Test of `Abuse of the Dominant Position'
35
D.
Geographic Market Definition as an Example of the Likely Different Roles of Market Integration at the Jurisdictional and Substantive Levels
37
V.
Conclusions
37
2.
Market Separation under Article 102 TFEU: The Role of Dominance
41
I.
Introduction
41
II.
Cases of Market Separation by Dominant Undertakings under Article 102 TFEU
42
A.
Geographic Price Discrimination
43
B.
Exclusionary Abuses Hindering Competition across National Borders
46
C.
Comment: The Significance of Geographic Market Definition
48
III.
Analytical Approach to Market Separation by Private Actors under the Free Movement Provisions and its Relationship to Market Separation by Dominant Undertakings
49
A.
Asymmetry between the Addressees of the Competition Law Provisions and the Free Movement Provisions
50
IV.
Functionalism and the Significance of Public Enforcement of the Competition Law Provisions
52
V.
Beyond Functionalism: The Significance of a Quantitative Threshold for Power
56
A.
Dominance as a Condition Sine Qua Non for Anti-competitive Market Separation under Article 102 TFEU: Normative and Legal Considerations
61
VI.
Specific Example of Article 106(2) TFEU
66
VII.
Conclusions
67
3.
Market Separation under Article 102 TFEU: The Role of Economic Justifications
69
I.
Introduction
69
II.
Analytical Framework for Assessing Market Separation as an Abuse of the Dominant Position
70
A.
Structure of Article 102 TFEU: `Objective' or `Efficiency' Justifications and the Burden of Proof
71
B.
Distinction between Unilateral Conduct and Agreements: The Specific Case of Contractual Abuses
75
III.
Conceptual Elements of Measures Constituting a Restriction on Free Movement
79
A.
Distinguishing between Economic and Non-economic Values under the Free Movement Provisions
80
B.
Economic Values Promoted by the Free Movement Provisions: A Discrimination Test, a Market Access Test or Both?
85
IV.
Establishing Market Separation as an Abuse of the Dominant Position
92
A.
Role of Intent: An Analogy with Discriminatory Trade Barriers?
93
B.
`Efficiency' and `Objective' Justifications: Is Uniformity within the Internal Market an End in itself?
98
V.
Constitutional Basis for Aligning the Notions of Trade Barrier and Abuse of the Dominant Position
106
A.
Different Use of Economics to Establish a Trade Barrier versus an Abuse of the Dominant Position
106
B.
From Article 3(1)(g) TEC to Protocol No 27 TFEU: No Conflict in Substantive Values between Competition and Market Integration
108
VI.
Conclusions
111
4.
Market Separation under Article 102 TFEU and the Role of Non-economic Justifications: A Question of Attribution
113
I.
Introduction
113
II.
Abuse and Public Policy Justifications: Treaty-Based Arguments
114
A.
Conceptual Foundation of Justified Trade Barriers: Distribution of Competences for Market Regulation
115
B.
`Pre-emption and the Exclusive Competence to Establish the Rules on Competition
122
III.
Abuse and Public Policy Justifications: Interpretation of the Case Law
127
A.
Interpretation of the Case Law at a Descriptive Level
128
B.
Potential for Abusive Conduct Genuinely in the Public Interest versus the Potential for Genuine `Lobbying' Efforts
133
C.
Potential for Added Costs in Terms of Legal Analysis
136
D.
Attribution as a Question Distinct from, and Prior to, the Substantive Legality Test
138
IV.
Conclusions
140
5.
Shared Responsibility for Market Separation by Dominant Undertakings and the State: The Question of Attribution Revisited
142
I.
Introduction
142
II.
Abuse and the State Action Defence: Establishing Private Responsibility
144
A.
Type of Link between State Legislation and the Undertaking's Conduct: The Legality, Purpose and Margin of Autonomous Conduct
145
B.
Intensity of the Link between State Legislation and the Undertaking's Conduct: Encouragement and Compulsion
152
III.
Abuse and the State Action Doctrine: Establishing State Responsibility
155
A.
Relationship between Article 4(3) TEU-L (ex-Article 10 TEC) and Article 106(1) TFEU in Conjunction with Article 102 TFEU
157
B.
Type of Link between State Legislation and the Undertaking's Conduct: Autonomous Conduct Prohibited under Article 102 TFEU
159
C.
Intensity of the Link between State Legislation and the Undertaking's Conduct: An Issue of Indeterminacy
164
D.
Relationship between the State Action Doctrine and the Free Movement Provisions
172
IV.
Interplay between Private and State Responsibility under the Competition Law Provisions
177
A.
Dual Role of ex-Article 3(1)(g) TEC
178
B.
Structural Imbalance between Private and State Responsibility under the Competition Law Provisions
179
V.
Conclusions
183
6.
Principled Attribution of Market Separation to the Dominant Undertaking and the State: A Revised State Action Defence
185
I.
Introduction
185
II.
From Article 3(1)(g) TEC to Protocol No 27 TFEU: Distinct Substantive Legality Tests and Associated Enforcement Mechanisms
186
A.
Demise of the State Action Doctrine in Favour of the Free Movement Provisions
186
B.
Geographic Market Definition
192
C.
Procedural Limitations and Institutional Capacities of the Actors Involved
196
III.
Principled Attribution of Market Separation Controlled: The Example of the `Exhaustion' of Intellectual Property Rights
200
A.
Side One of the Interface between the Free Movement and the Competition Law Provisions in Regard to IPRs: Non-exhaustion
201
B.
Side Two of the Interface between the Free Movement and the Competition Law Provisions in Regard to IPRs: Exhaustion
207
IV.
Conclusions
214
Conclusions
217
Bibliography
219
Index
237