Competition Law 319
W2 L1: Anti-competitive agreements
The UK antitrust prohibitions are based on the EU law prohibitions
The same prohibitions will apply in both jurisdictions, but will apply in parallel?
- So, UK rules won’t change post Brexit
Major divergence – EU Block intervention, which was introduced after Brexit, so the UK wont
benefit from the change.
The UK gov said they’ll introduce a new block intervention which is said to be better than the
EU one.
Article 101 TFEU.
1.The following shall be prohibited as incompatible with the internal market:
- all agreements between undertakings,
- decisions by associations of undertakings
- and concerted practices which may affect:
trade between Member States and which have as their object or effect the prevention,
restriction or distortion of competition within the internal market.
Anti-competitive laws are prohibited under para 1.
2. Any agreements or decisions prohibited pursuant to this Article shall be automatically void.
Anti-competitive laws are void under para 2.
3. The provisions of paragraph 1 may, however, be declared inapplicable in the case of: any
agreement or category of agreements between undertakings; any decision or category of
decisions by associations of undertakings; any concerted practice or category of concerted
practices,
which contributes to improving the production or distribution of goods or to promoting
technical or economic progress, while allowing consumers a fair share of the resulting benefit,
and which does not:
(a) impose on the undertakings concerned restrictions which are not indispensable to the
attainment of these objectives;
(b) afford such undertakings the possibility of eliminating competition in respect of a
substantial part of the products in question
If the anti-competitive laws meet the criteria outlined in para 3, they are exempted.
Competition Act 1998
o Section 2 - Agreements etc. preventing, restricting or distorting competition (1) Subject to
section 3, agreements between undertakings, decisions by associations of undertakings or
concerted practices which-
(a) may affect trade within the United Kingdom, and
(b) have as their object or effect the prevention, restriction or distortion of competition within
the United Kingdom, are prohibited unless they are exempt in accordance with the provisions
of this Part. Section 9 mirrors Art 101(3) TFEU.
, Competition Law 319
o Section 10 - Retained Exemptions (A1) An agreement is exempt from the Chapter I
prohibition if it falls within a category of agreements specified as exempt in a retained block
exemption regulation.
o Section 60A - (2) The person must act (so far as is compatible with the provisions of this Part)
with a view to securing that there is no inconsistency between
(a) the principles that it applies, and the decision that it reaches, in determining the question,
and
(b) the principles laid down by the Treaty on the Functioning of the European Union (TFEU)
and the European Court before [31 Dec 2020], and any relevant decision made by that Court
before [31 Dec 2020], so far as applicable immediately before [31 Dec 2020] in determining
any corresponding question arising in EU law, subject to subsections (4) to (7).
New and improved post-brexit s.60. 31st Dec 2020, all the case law till then, is retained in
UK law, everything after that is not.
Divergence from EU law
(7) Subsection (2) does not apply if the person thinks that it is appropriate to act otherwise in the light
of one or more of the following
(a) differences between the provisions of this Part under consideration and the corresponding
provisions of EU law as those provisions of EU law had effect immediately before [31 Dec 2020];
(b) differences between markets in the United Kingdom and markets in the European Union;
(c) developments in forms of economic activity since the time when the principle or decision referred
to in subsection (2)(b) was laid down or made;
(d) generally accepted principles of competition analysis or the generally accepted application of
such principles;
(e) a principle laid down, or decision made, by the European Court on or after [31 Dec 2020];
UK court may look at post-brexit EU jurisprudence but doesn’t have to follow it.
(f) the particular circumstances under consideration.
Sherman Act 1890 (American Provision).
Section 1 - Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of
trade or commerce among the several States, or with foreign nations, is declared to be illegal. Every
person who shall make any contract or engage in any combination or conspiracy hereby declared to be
illegal shall be deemed guilty of a felony.
Single prohibition, whereas UK law is a prohibition and exception (bifurcated)
