The Interface between Competition and the Internal Market: Market Separation under Article 102 TFEU

The Interface between Competition and the Internal Market: Market Separation under Article 102 TFEU

by Vasiliki Brisimi

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Overview

This book explores the interface between competition law and market integration in the application of Article 102 of the Treaty on the Functioning of the European Union (TFEU), focusing on the notion of 'market separation'-namely conduct that may hinder cross-border trade. The discussion reviews, among other things, the treatment of geographic price discrimination and exclusionary abuse, by which out-of-state competitors are affected. 'Market separation' cases are treated in the book as a case study for appraising the interface between competition and the Internal Market. On this basis, the book provides a comparative analysis of the Treaty requirements under Article 102 TFEU when applied in 'market separation' cases and the Treaty requirements under the free movement provisions. In addition, it utilises 'market separation' cases as a springboard for advancing an informed reformulation of the application of Article 102 TFEU when state action comes into play.All in all, the analysis presented in the book deconstructs the elements for establishing 'market separation' as an abuse of the dominant position. It shows that there is nothing that would justify a distinctive treatment of 'market separation' under Article 102 TFEU, other than a principled understanding of Internal Market law as a whole: whatever understanding one reaches about the proper shape of the Internal Market, interrogation of the proper application of competition law comes after that and thus should be informed by this understanding.

Product Details

ISBN-13: 9781849465694
Publisher: Hart Publishing
Publication date: 07/14/2014
Series: Hart Studies in Competition Law Series , #9
Pages: 274
Product dimensions: 6.14(w) x 9.21(h) x 0.70(d)

About the Author

Vasiliki Brisimi (DPhil, Oxon) is an Associate at Koutalidis Law Firm in Athens, Greece.

Table of Contents

Acknowledgements v

Table of Cases xiii

Table of Legislation xxix

Table of Conventions xxxiii

Introduction 1

I The 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 The 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 The Jurisdictional Function of the Requirement of 'Effect on Trade' 28

B The 'Effect on Trade Test: Identical to or Distinct from the Test under Article 34 TFEU for MEQR? 30

C The '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 39

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 An Analytical Approach to Market Separation by Private Actors under the Free Movement Provisions and its Relationship to Market Separation by Dominant Undertakings 49

A The 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 The 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 The Analytical Framework for Assessing Market Separation as an Abuse of the Dominant Position 70

A The Structure of Article 102 TFEU: 'Objective' or 'Efficiency Justifications and the Burden of Proof 71

B The 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 The 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 The Constitutional Basis for Aligning the Notions of Trade Barrier and Abuse of the Dominant Position 106

A The Different Use of Economics to Establish a Trade Barrier versus an Abuse of the Dominant Position 106

B From Article 3(l)(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 The 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 The Potential for Abusive Conduct Genuinely in the Public Interest versus the Potential for Genuine 'Lobbying' Efforts 133

C The 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 The Type of Link between State Legislation and the Undertaking's Conduct: The Legality, Purpose and Margin of Autonomous Conduct 145

B The 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 The Relationship between Article 4(3) TEU-L (ex-Article 10 TEC) and Article 106(1) TFEU in Conjunction with Article 102 TFEU 157

B The Type of Link between State Legislation and the Undertaking's Conduct: Autonomous Conduct Prohibited under Article 102 TFEU 159

C The Intensity of the Link between State Legislation and the Undertaking's Conduct: An Issue of Indeterminacy 164

D The Relationship between the State Action Doctrine and the Free Movement Provisions 172

IV The Interplay between Private and State Responsibility under the Competition Law Provisions 177

A The Dual Role of ex-Article 3(1 )(g) TEC 178

B The 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(l)(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

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