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Summary Competition Law - Commercial Law and Intellectual Property
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Condenses all the reading, lectures and SGS activities to about 30% the original volume. Clear, Concise and Organised.
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11. COMPETITION LAW Since Brexit – EU comp law no longer enforceable in UK but sources still relevant to
interpretation and application of UK comp law
Rationale = facilitate trading env. where there is a high level of competition between market
players and no artificial barriers to prevent this
High level of comp = better deal for consumers and encouragement of innovation
Designed to protect consumers not competitors of parties to the agreement (although they
likely will have a negative effect for consumers)
EXAM – competition law is concerned with regulating 5 types of scenario but the one
needed is…
o Control of the conditions under which players on a market can co-operate with one
another where they are not competitors and at different levels of the supply chain
i.e. Vertical Agreements – including DA between supplier (S) + distributor (D)
o controlled by s.2 Competition Act 1998 aka Chapter I Prohibition
DA will most likely be anti-competitive because it provides S with control over
terms on which D sells goods to customers
COMPETITION & MARKETS AUTHORITY (CMA)
CMA Enforces comp law – began in 2014 (predecessor = Office for Fair Trading (OFT))
CA 1998 enacted to harmonise UK comp law with EU – significant amount remains
applicable
SOURCES OF UK COMPETITION LAW
1. Competition Act 1998
Prohibits certain types of anti-competitive behaviour – s.2 = Distribution Agreements (DA)
2. Competition Act (Vertical Agreements Block Exemption) Order 2022 (VABEO)
Block exemption = statutory instrument which clarifies whether or not a given agreement
can be exempted from the Chapter I Prohibition
Secondary legislation issued as orders of the SoS on advice of the CMA under s.6 CA 1998
3. CMA Guidance
Issues guidance eon how to apply CA 1998 and to indicate CMA policy on certain matters
Soft law so not legally binding – but does summarise current case law so should be atken
into account when advising clients
EU Commission’s Notice on Agreements of Minor Importance
4. Case Law
Prior to Brexit = CJEU judgements which were binding on UK courts when applying CA ‘98
o Remain binding on all UK courts except appellate (SC / CA / HC)
o Not obliged to follow new CJEU judgements but courts likely to have regard to them
, CHAPTER I PROHIBITION
Step 1
Does the Chapter I Prohibition apply prima facie?
Apply s.2 CA. Three elements:
Agreement/decision/concerted practice
Prevention/restriction/distortion of competition
Effect on UK trade if implemented in the UK (s. 2(3))
Step 2
Can you rely on a block exemption?
Does the agreement belong in the VABEO Block (articles 3 & 6)?
If yes, do its terms comply with the VABEO (articles 8 & 10)?
Step 3
Is the effect on competition appreciable?
Apply NAOMI. Two issues:
Does the agreement have the object of restricting competition (paras. 2 & 13)?
If no, parties’ market shares (para. 8).
Step 4
Self-assessment?
Apply s. 9. CA:
Four criteria
Exercise caution
Step 5
Infringement consequences
Advise client of penalties and other risks.
Better to stop prohibited activity.
Consider whistleblowing.
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