Suzanne Rab

The EU Directive on private enforcement in antitrust cases (Directive 2014/1040) had a considerable impact on the laws for private competition enforcement in EU Member States. This Practice Note explores the main provisions in the directive, including minimum provisions relating to disclosure rules across Member States, proving loss and the passing on defence and limitation periods, particularly in relation to its impact in the UK. Following the entry into force of the Damages Directive on 27 December 2014, this practice note has been archived and is not maintained.

Article 102 TFEU prohibits the abuse of a dominant position; this practice note looks at what constitutes a ‘dominant position’.

Controversial issues can arise where competition law is applied to business activities relating to intellectual property rights (IPRs). This Practice Note charts some of the emerging themes in relation to the interaction between competition law and IPRs. This Practice Note also outlines potential competition issues relating to business practices such as standard setting and patent pools, ‘pay for delay’ deals and licensing of IPRs.

Standardisation or standard setting agreements outline common technical or quality requirements and play an important role in many industries. This Practice Note provides practical guidance on the European Commission’s approach to the cooperative (and potentially restrictive) aspects of standardisation and standard terms, highlighting high/low risk activity in relation to the prohibition on restrictive agreements under Article 101 TFEU. The Practice Note also provides worked examples in difficult areas (such as where IPRs are involved), examples from EU case law as well as a checklist of risk factors and how parties might mitigate risk. There are direct links to the Commission’s Horizontal Cooperation guidelines.

This Practice Note reviews the application of EU law to the actions of the state when it intervenes in markets through undertakings it controls and/or owns or which it places in a privileged position. The Practice Note provides an overview of the duty of loyalty under Article 106(1) TFEU and Article 4(3) TEU and details circumstances when the state may be acting anti-competitively. There is also detail of how the derogation for ‘services of general economic interest’ is applied.

The essential facilities doctrine states that a dominant company’s refusal to supply or grant access to an essential facility that it controls amounts to an abuse of dominance. The essential facilities doctrine has been used to break monopolies and continues to evolve. This Practice Note considers the origins of the doctrine and the underlying policy. How the essential facilities doctrine has evolved is explored through decisions such as Oscar Bronner together with a consideration of the different elements of the doctrine and its practical application. Also, its future and how essential facilities type arguments have been used in recent energy cases to secure commitments from energy incumbents to grant access to their infrastructure.

There have been a number of EU competition investigations around tying and bundling in traditional ‘bricks and mortar’ cases but also in newer technology markets which are challenging traditional competition analysis. This Practice Note considers the different types of tying and bundling and the approach of the European Commission under Article 102 TFEU. The challenges of applying the existing approaches in tying cases to ‘new economy’ products is explored, including complex issues raised by the Microsoft media player cases and more recent complaints against Google.