The Law and Economics of Article 102 TFEU

Robert O'Donoghue is a barrister at Brick Court Chambers, London and Brussels. A Jorge Padilla is Senior Managing Director and Head of Compass Lexecon Europe.

1. INTRODUCTION, SCOPE OF APPLICATION, AND BASIC FRAMEWORK
1.1 INTRODUCTION
1.2 OBJECTIVES OF ARTICLE 102 TFEU
1.3 SCOPE OF APPLICATION OF ARTICLE 102 TFEU
1.4 RELATIONSHIP BETWEEN ARTICLE 102 TFEU AND OTHER LEGAL INSTRUMENTS
2. HISTORY, DEVELOPMENT, AND REFORM
2.1 INTRODUCTION
2.2 HISTORY OF ARTICLE 102 TFEU
2.3 DEVELOPMENT OF ARTICLE 102 TFEU
2.4 THE REFORM OF ARTICLE 102 TFEU
3. MARKET DEFINITION
3.1 INTRODUCTION
3.2 PRODUCT MARKET DEFINITION: BASIC CONCEPTS
3.3 RELEVANT PRODUCT MARKETS: FROM THEORY TO PRACTICE
3.4 GEOGRAPHIC MARKET DEFINITION
3.5 SELECTED ISSUES ON MARKET DEFINITION
4. DOMINANCE
4.1 INTRODUCTION
4.2 SINGLE FIRM DOMINANCE
4.3 COLLECTIVE DOMINANCE
4.4 DOMINANT BUYERS
4.5 "SUPERDOMINANCE"
4.6 COMPARING DOMINANCE UNDER ARTICLE 102 TFEU AND OTHER EU LEGISLATION
4.7 SUBSTANTIAL PART OF THE COMMON MARKET
5. THE GENERAL CONCEPT OF AN ABUSE
5.1 INTRODUCTION
5.2 THE ECONOMICS OF ABUSIVE UNILATERAL CONDUCT
5.3 THE CATEGORIES OF ABUSE UNDER ARTICLE 102 TFEU
5.4 ANTICOMPETITIVE EFFECTS UNDER ARTICLE 102 TFEU
5.5 OBJECTIVE JUSTIFICATION
6. PREDATORY PRICING
6.1 INTRODUCTION
6.2 THE ECONOMICS OF PREDATORY PRICING
6.3 THE BASIC RULES ON BELOW-COST PRICE CUTTING UNDER ARTICLE 102 TFEU
6.4 SPECIFIC ISSUES WITH BELOW-COST PRICING UNDER ARTICLE 102 TFEU
6.5 EXCLUSIONARY ABOVE-COST PRICE CUTS UNDER ARTICLE 102 TFEU
6.6 OBJECTIVE JUSTIFICATION
7. MARGIN SQUEEZE
7.1 INTRODUCTION
7.2 THE ECONOMICS OF MARGIN SQUEEZE
7.3 MINIMUM LEGAL CONDITIONS FOR A MARGIN SQUEEZE
7.4 THE RELATIONSHIP BETWEEN MARGIN SQUEEZE AND OTHER ABUSES
7.5 DIFFICULTIES WITH IDENTIFYING AN ANTICOMPETITIVE MARGIN SQUEEZE IN PRACTICE
7.6 CONFLICTS BETWEEN REGULATION AND COMPETITION LAW IN MARGIN SQUEEZE CASES
8. EXCLUSIVE DEALING AND RELATED PRACTICES
8.1 INTRODUCTION
8.2 ECONOMICS OF EXCLUSIVE DEALING
8.3 EVOLUTION OF THE APPROACH TO EXCLUSIVE DEALING UNDER ARTICLE 102 TFEU
8.4 ASSESSMENT OF EXCLUSIVE DEALING UNDER ARTICLE 102 TFEU
8.5 OBJECTIVE JUSTIFICATION
8.6 PRACTICES FALLING SHORT OF OUTRIGHT EXCLUSIVITY
9. LOYALTY REBATES AND RELATED PRACTICES
9.1 INTRODUCTION
9.2 ECONOMICS OF LOYALTY REBATES
9.3 ASSESSMENT OF LOYALTY REBATES UNDER ARTICLE 102 TFEU
9.4 ANTICOMPETITIVE EFFECTS IN REBATE CASES
9.5 OBJECTIVE JUSTIFICATION
10. REFUSAL TO DEAL
10.1 INTRODUCTION
10.2 THE ECONOMICS OF REFUSAL TO DEAL
10.3 THE DUTY TO DEAL WITH COMPETITORS
10.4 DUTY TO DEAL WITH CUSTOMERS UNDER ARTICLE 102 TFEU
11. TYING AND BUNDLING
11.1 INTRODUCTION
11.2 THE ECONOMICS OF TYING AND BUNDLING
11.3 TYING AND BUNDLING UNDER ARTICLE 102 TFEU
11.4 TYING IN AFTERMARKETS
11.5 MIXED BUNDLING
12. EXCLUSIONARY NON-PRICE ABUSES
12.1 INTRODUCTION
12.2 EXAMPLES OF EXCLUSIONARY NON-PRICE ABUSES
13. ABUSIVE CONDUCT AND STANDARDS
13.1 INTRODUCTION
13.2 THE MEANING OF FRAND TERMS
13.3 INJUNCTIVE RELIEF AND FRAND TERMS
13.4 DECEPTION/MISREPRESTATION 7
13.5 ABUSIVE ACQUISITION OR ACCUMULATION OF IPRs
14. EXCESSIVE PRICING
14.1 INTRODUCTION
14.2 THE ECONOMICS OF EXCESSIVE PRICING
14.3 THE LEGAL TEST(S) FOR EXCESSIVE PRICING
14.4 DIFFICULTIES WITH THE CURRENT APPROACH TO EXCESSIVE PRICING
14.5 ALTERNATIVE APPROACHES TO EXCESSIVE PRICING UNDER ARTICLE 102 TFEU
14.6 CONCLUSION
15. ABUSIVE DISCRIMINATION
15.1 INTRODUCTION
15.2 THE ECONOMICS OF PRICE DISCRIMINATION
15.3 LEGAL CONDITIONS FOR ABUSIVE DISCRIMINATION
15.4 EXAMPLES OF ABUSIVE DISCRIMINATION
15.5 OBJECTIVE JUSTIFICATION
16. OTHER EXPLOITATIVE ABUSES
16.1 INTRODUCTION
16.2 ABUSE OF MONOPSONY PURCHASING POWER
16.3 UNFAIR AND EXPLOITATIVE CONTRACT TERMS
17. EFFECT ON TRADE
17.1 INTRODUCTION
17.2 BASIC LEGAL CONDITIONS FOR EFFECT ON TRADE
17.3 SPECIFIC APPLICATIONS OF THE EFFECT ON TRADE CONCEPT
18. REMEDIES
18.1 INTRODUCTION
18.2 GENERAL PRINCIPLES GOVERNING REMEDIES
18.3 PRINCIPAL TYPES OF ADMINISTRATIVE DECISIONS
18.4 PRINCIPAL TYPES OF REMEDIES
18.5 PRIVATE LITIGATION AND REMEDIES