Preface

ix

List of abbreviations

xi

Table of cases

xv

Table of treaties and legislation

xxix

1.

Introduction

1

1.1.

Introduction

1

1.2.

Should CSME competition law benefit from the experience of the United States, the European Union and other jurisdictions in the enforcement of competition law?

3

1.3.

The structure of the book

8

2.

The economics of competition law

12

2.1.

Introduction

12

2.2.

The economic benefits of competition

14

2.3.

Basic economic concepts

15

2.4.

Economic theories of competition

26

2.5.

The methodology of competition law

36

3.

The objectives of CSME competition policy and law

47

3.1.

Introduction

47

3.2.

The objectives of CSME competition policy

49

3.3.

The prioritisation of the objectives of CSME competition law

59

3.4.

Conclusion

69

4.

The concept of `enterprise'

70

4.1.

Introduction

70

4.2.

The meaning of `any person or type of organisation'

71

4.3.

The meaning of a `non-profit organisation'

71

4.4.

The meaning of `involvement in the production of or the trade in goods, or the provision of services'

81

4.5.

The exclusion of public entities involved in the exercise of governmental authority from the definition of an enterprise

88

4.6.

Autonomy in determining conduct on the market as an essential characteristic of an enterprise

97

5.

The concept of `cross-border effect'

101

5.1.

Introduction

102

5.2.

Whether, for CSME competition law to apply, the cross-border effect of anti-competitive conduct must be actual and direct, or whether CSME competition law should also apply to anti-competitive conduct that has potential and indirect effect on competition and trade in the CSME?

103

5.3.

Whether, for the application of CSME competition law, the cross-border effect of anti-competitive conduct must be appreciable -- that is, of a certain magnitude?

107

5.4.

Whether CSME competition law will apply to anti-competitive conduct that is confined to a single Member State or a part of it?

118

5.5.

Whether CSME competition law will apply to anti-competitive conduct of enterprises established outside the Community territory, but which has effect on competition and trade within the CSME?

120

5.6.

Whether CSME competition law will apply to the anti-competitive conduct of enterprises established within the Community, but which has effect on competition and trade in a third country?

124

6.

Agreements, decisions and concerted practices prohibited under CSME competition law

129

6.1.

Introduction

129

6.2.

Horizontal and vertical agreements

130

6.3.

The meaning of `agreements, decisions and concerted practices'

133

6.4.

The distinction between `infringement by object' and `infringement by effect'

155

6.5.

The advantages of the expansive interpretation of `agreements, decisions and concerted practices'

158

6.6.

Exemption under Article 177(4) RTC

159

7.

The prohibition of abuses of a dominant position

166

7.1.

Introduction

166

7.2.

The concept of `dominance'

168

7.3.

The concept of `abuse'

175

7.4.

Exclusionary abuses

178

7.5.

Exploitative abuses

190

7.6.

Price discrimination

191

7.7.

Justifications available to dominant enterprises

195

8.

The obligations of Member States under CSME competition law

207

8.1.

Introduction

207

8.2.

General and specific obligations imposed on a Member State concerning implementation and enforcement of CSME competition law

208

8.3.

Competition law and public undertakings, and undertakings to which special or exclusive rights have been granted by a State, including State monopolies

214

8.4.

Exemptions from the application of competition law enjoyed by public undertakings, and by undertakings to which exclusive and special rights have been granted by a State

226

8.5.

Monopolies of a commercial nature or character under Article 31 RTC and Article 129(4) EPA

234

9.

The enforcement of CSME competition law by the CARICOM Competition Commission

242

9.1.

Introduction

242

9.2.

The composition of the CCC

243

9.3.

The conduct of Commissioners

243

9.4.

The juridical personality of the CCC

246

9.5.

The functions of the CCC

246

9.6.

Enforcement of CSME competition law by the CCC and the protection of the fundamental rights of enterprises

249

9.7.

The powers of the CCC

255

Index

284