LX3057 Competition Law study pack PDF

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Brunel Law School

LX3057 Competition Law Study Guide

Academic Year 2019-20 20 Credits Module Convenor: Dr Maria Kotsovili Room: ELT072 Tel: 01895-266890 Email: [email protected] Feedback & Consultation: Please email me to arrange a meeting Seminar tutor: Dr Asress Gikay Email: [email protected]

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About this module Welcome to the Competition Law course. This module aims to offer students a thorough understanding of the main principles of competition law in the EU and the UK. The module uses EU competition law as a framework within which to understand the law, economics and policy of competition law. Specifically, the module examines the historical development of competition law in the EU and the UK, the main economic principles and theories underpinning competition law, anti-competitive agreements, abuse of a dominant position, and merger control. The module also covers EU and UK competition law procedure, and public and private enforcement. The Indicative Reading shown in this Outline is intended primarily as a reference source. In any event students are expected to go beyond the directed reading in order to develop their knowledge and understanding of the subject. Best wishes for an enjoyable course! Dr Maria Kotsovili *************************************************************************************** This 20 credit Level III optional law module focuses on introducing students to the key principles of competition law in the EU and the UK. Each constitutes a separate and distinct source and body of law of controls outlawing or restricting those activities of commercial operators that are designed to or have the effect of undermining competition in the supply/purchase of goods/services within the market (anti-competitive activities). EU Competition Law applies where inter-state trade between EU Member States is affected by anti-competitive activity, whereas UK Competition law concerns itself with anti-competitive practices that principally or solely affect the UK. Competition policy underpinning that of the EU and UK aims to ensure that commercial operators remain in a state of rivalry with the aim of seeking to ensure that consumers are able to access the widest possible range of goods and services at lowest possible cost. EU policy has a special distinctive dimension of ensuring that its goal of realising closer market integration between the Member States is not undermined by anti-competitive corporate activity. Both EU and UK approaches to competition policy share the same basic core economic values. In particular, the maximisation of competition is perceived to provide optimal level of welfare for the consumer. Competition law represents a particular view of ensuring that a particular market is ‘efficient’. There is no clear agreement as to what the ideal competition policy should contain; rival economic theories and political considerations and interests abound in this area. Competition policy remains Page | 2

a highly contentious and political arena, where the boundaries of determining what in fact is a ‘market’ and whether any particular variations or exceptions to the consumer welfare model should be employed for special reasons (e.g. social, industrial or environmental) remain fluid and dependent upon political just as much as economic assessments by governments. Competition laws and policies of the EU and UK have relatively recently undergone a series of important and profound changes. The EU has carried out a series of very recent reforms in relation to abuse of a dominant position, enforcement and mergers. UK Competition Law in its turn has experienced a number of deep-rooted amendments. With the entry into force of the Competition Act 1998 in March 2000 and the Enterprise Act 2002 in June 2003, constituting the principal (statutory) sources of competition regulation in the UK, UK Competition Law and policy reflect the legal and economic principles established by the EU. In addition, the Enterprise Act 2002 has introduced a further legal dimension to UK Competition Law and its enforcement, namely the introduction of specific economic crimes associated with anti-competitive activity. The criminalisation of certain anti-competitive practices in the UK introduces a fundamentally new dimension, and has been introduced with reference to competition controls exercised in the United States of America. On 1st April 2014 by merging the Office of Fair Trading and the Competition Commission the new Competition Authority in the UK – the Competition and Markets Authority (CMA) was created. The newest reform - the Directive 2014/104/EU on antitrust damages actions must be implemented by the Member States in their legal systems by 27 December 2016 (including in the EEA EFTA States as well). Even if the UK leaves the EU, the UK still have competition law. However, it will not need to follow the EU interpretation (depending on the agreement reached with the EU). Aims, objectives and learning outcomes This 20 credit Level III optional module aims to introduce students to the core legal provisions, principles and issues of Competition Law of the EU and the UK, in order: i) to establish and foster amongst students a solid grounding in the core areas of EU and UK Competition Law, namely those areas most commonly met in general legal and commercial practice in the UK; and ii) to encourage debate and discussion on selected important aspects pertaining to the regulation of competition within the context of the single market of the European Union as well as the UK. iii) to encourage students to reflect upon the broader constitutional and political implications of EU and UK Competition Law as well as on international aspects of competition regulation.

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On completion of the course, successful students will be able to: 1. Identify the key legal issues involved in the market competition between undertakings, both in the UK and within the EU; 2. Develop an analytical and critical thinking towards the situations covered by and the ultimate purpose of competition law; 3. Recognise, amongst the possible cases that may occur in the business world, the concrete situations that may fall within the scope of the EU and UK competition rules, and propose solutions by assessing the individual cases. These learning outcomes will in turn allow students either to continue further studies in this area of law at postgraduate level or to consider pursuing a career as competition lawyer in (international) law firms.

Lecture schedule

Lectures/Seminars: The module will be composed of 22 hours of lectures and 8 one-hour seminars spread over the academic year. Lectures: There will be 11 two-hour lectures. The first lecture will convene in Week 1 of the academic year. The last lecture at the end of Term II will be devoted to revision, which will give the opportunity to review concepts and issues dealt with during both terms. Seminars: Each student will need to attend 8 seminars. Seminar cycles are scheduled to commence in week 4 of the module. Students would be advised well in advance of any seminar change in case of unforeseen circumstances. The seminars questions are designed to assist in understanding and application of key legal concepts pertinent for assessment purposes. Seminar attendance is compulsory. The seminars are designed in particular to: (1) facilitate the development of a good legal understanding of the main areas of EU and UK Competition Law and policy; Page | 4

(2) provide opportunities for students to engage in presentation and discussion of relevant legal issues; (3) encourage discussion of related legal and political issues; and (4) assist as a useful basis for revision of key areas of learning and debate. In addition to engaging in group discussions, students may be requested to make individual or joint presentations in relation to selected questions. Provisional Timetable of lectures and seminars 2019/2020 The provisional timetable for lectures and seminars for the academic year 2019/2020 is scheduled as listed below. If any modification to the timetable proves necessary, the modification will be notified on Blackboard and/or notice boards. Students should therefore consult these sites on a regular basis to check for any timetable changes. In addition, it should be noted that the timetable for lectures and seminars is intended to be a rough guide only; it may the case that certain topics may take longer or shorter than anticipated and, in this case, the time devoted to such topics would be adjusted to meet students’ learning needs. Lecture schedule 2019-2020 Week 2 3 5

8 9 11

Topic Introduction to Competition Law. Objectives of competition law and policy Economic aspects of competition law. Market Definition Introduction to Article 101 TFEU. The relationship between Article 101(1) TFEU and Article 101(3) TFEU UK Competition Act 1998: Chapter I. The Cartel Offence. Leniency policy Article 102 TFEU UK Competition Act 1998: Chapter II. Market Investigations

No. 1 2 3

4 5 6

17 19

EU Merger control UK Merger control

7 8

22 23 25

EU and UK Public Enforcement Private Enforcement Revision

9 10 11

Seminar Schedule 2019-2020 Page | 5

Week 4 6 10 12 18 20 24 26

Seminar Topics Objectives of competition law. Relationship between UK and EU competition law Market definition. Introduction to Article 101 TFEU The relationship between Article 101(1) and 101(3) TFEU. UK Competition Act 1998: Chapter I. The Cartel Offence. Leniency policy. Article 102 TFEU I Article 102 TFEU II. UK Competition Act 1998: Chapter II. Market Investigations EU and UK merger control Public enforcement of EU and UK competition law Private enforcement

Attendance and Engagement All students are expected to attend classes regularly as those who fail to attend classes often get lower marks than those who do attend, and actively participate. It is in class where students learn subject matter and skills that they will be assessed on and when writing references members of staff often comment on a student’s performance in classes. If you miss classes due to unforeseen circumstances it is good practice to contact your Personal Tutor.

Reading guide Students are recommended to acquire an up to date competition law textbook on EU and UK Competition Law as well as a compendium of competition legislative materials. Only un-annotated collections of EU and UK legislative materials may be taken into the written examination; students should ensure that they do not write over such materials if they wish to take them into the examination room. Recommended textbook: Students are recommended to purchase the following textbook:

Whish and Bailey, Competition Law, 9th ed., Oxford University press, 2018 There a number of alternative textbooks on offer, which students may wish to select or consult as an alternative, including:



Jones and Sufrin, EU Competition Law – Text, Cases and Materials, 6th Page | 6

ed., Oxford University press, 2016 Ezrachi, EU Competition Law: An Analytical Guide to the Leading Cases, 6th ed., Hart, 2018  Korah and Lianos, Competition Law: Text, Cases and Materials, 4 th ed., Hart, January 2017(contains UK materials)  MacCulloch and Rodger, Competition Law and Policy in the EU and UK, 5th ed., Routledge, 2014  Legislative materials on EU Competition Law: Students are also recommended to obtain a compilation of EU competition legislative materials. Recommended compilations include: 



Middleton, Blackstone’s Statutes UK and EU Competition Law Documents 8th ed., Oxford University press, 2015

EU competition legislation: students are referred to the European Commission’s website of its Directorate-General for Competition. This contains a wealth of legislation and ‘soft law’ guidance materials, as well as information about latest EU competition policy and caselaw developments. In addition, students should be aware of the EU’s Official Journal website, which provides free on-line access to EU legislation through the EUR-LEX database services. Journals: *European Competition Law Review (ECLR) Competition Law Review (CompLRev) European Competition Journal Journal of Antitrust Enforcement Journal of Competition law & Economics Journal of European Competition Law & Practice World Competition *European Law Review (ELRev.) *Common Market Law Review (CMLRev.) Yearbook of European Law (YEL) Legal Issues on European Integration (LIEI) International Comparative Law Quarterly Review (ICLQ) Modern Law Review (MLR) ********************************************************************************* *NB: Both the ECLR and ELRev. are accessible via the Westlaw electronic database. Page | 7

Court of Justice of the European Union/Case Law The jurisprudence of the Court of Justice of the European Union (including the General Court (GC)) constitutes an important integral part of EU Competition Law.

Online: EUR-LEX: The europa website of the European Union provides free access to all CJEU cases via its EUR-LEX database. This online database is particularly useful, given that it covers all CJEU/GC caselaw as well as providing relevant European Court Report page references: http://europa.eu/documents/eur-lex/index_en.htm Curia: The Court of Justice’s official website provides access to cases dated after 1996: http://curia.europa.eu/ Other sources of information: EU-related internet sites and legal databases on the EU: European Union’s ‘europa’ website: http://europa.eu/index_en.htm

Assessment This modular block is assessed by a coursework and written unseen examination. 1. Coursework – worth 50% of your final mark. The maximum word limit is 2,500 words. The coursework publication schedule is available on the TPO page on Blackboard Learn at the start of each academic year. The Coursework questions are released to students on the TPO page on Blackboard Learn as per this publication schedule. 2. Written unseen examination – worth 50% of your final mark. Assessments in the form of examinations will be timetabled during the University’s examination periods. The examination timetable is published by the University on the following web page: http://www.brunel.ac.uk/about/administration/exams Examination rubrics are published on the TPO page on Blackboard Learn prior to each examination period. The rubrics provide details of the number of Page | 8

exam questions you will be expected to answer, and whether you are permitted to take any statutory materials into the exam with you. Competition Law Students are permitted to take un-annotated legislative materials that include EU and UK competition legislation with them into the examination. These may include legislative materials contained in book compilations of statutory materials (e.g. Blackstone’s UK and EU Competition Documents).

Note on plagiarism Plagiarism: “To take and use as one’s own the thoughts, writings or inventions of another” (Oxford English Dictionary) – Two elements: 1. Taking another’s work 2. Using the work as your own Three types of plagiarism (intentional or unintentional): 1. Intra-corpal plagiarism – for example, from another student on the same course 2. Extra-corpal plagiarism – for example, from a web page, book or journal 3. Autoplagiarism – for example, submitting a previous essay or article as new work. Includes ’essay banks’. For further information on plagiarism, please see: https://www.brunel.ac.uk/life/library/SubjectSupport/Plagiarism.

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