<p>It can be read from the EC treaty that the European Community shall have as its task to promote competition throughout the Community. Competition law exists to ensure competition in a free market, as competition is believed to bring such benefits as efficiency, low prices and innovation. Article 82 EC is meant to promote competition and is also meant to prevent anti-competitive behaviour. For Article 82 EC to be applicable several requisites must be met and one of them is that the undertaking must be in a dominant position. It is no easy task to establish dominance and there are no clear guidelines as how to do so.</p><p>In the United Brands case the ECJ provided a definition of dominance stating that dominance was economic strength enjoyed by an undertaking which enabled it to prevent effective competition and to behave to an appreciable extent independently. Subsequently, in Hoffman La Roche it was stated that some competition does not prevent the undertaking from being dominant.</p><p>One important element in the assessment of dominance is the market share data. However, mere numbers cannot determine dominance and other factors must be taken into account. It is the effect on the market the undertaking has that is of interest and not merely its market share. Such factors may strengthen or weaken the undertaking’s market position. Important to note is that there is no exhaustive list of factors the Community authorities could take into consideration when assessing dominance.</p><p>Through the years, there has been much criticism directed against the application of Article 82 EC and several commentators have argued that it is applied too arbitrary, and that there is no formalistic approach. The Commission has acknowledged the fact that the current case law under Article 82 EC is controversial and is currently working on a review of the provision. It is however doubtful whether the review will have much impact considering that the Commission is bound by existing case law, but possibly it could encourage a development in the future.</p>

It can be read from the EC treaty that the European Community shall have as its task to promote competition throughout the Community. Competition law exists to ensure competition in a free market, as competition is believed to bring such benefits as efficiency, low prices and innovation. Article 82 EC is meant to promote competition and is also meant to prevent anti-competitive behaviour. For Article 82 EC to be applicable several requisites must be met and one of them is that the undertaking must be in a dominant position. It is no easy task to establish dominance and there are no clear guidelines as how to do so. In the United Brands case the ECJ provided a definition of dominance stating that dominance was economic strength enjoyed by an undertaking which enabled it to prevent effective competition and to behave to an appreciable extent independently. Subsequently, in Hoffman La Roche it was stated that some competition does not prevent the undertaking from being dominant. One important element in the assessment of dominance is the market share data. However, mere numbers cannot determine dominance and other factors must be taken into account. It is the effect on the market the undertaking has that is of interest and not merely its market share. Such factors may strengthen or weaken the undertaking’s market position. Important to note is that there is no exhaustive list of factors the Community authorities could take into consideration when assessing dominance. Through the years, there has been much criticism directed against the application of Article 82 EC and several commentators have argued that it is applied too arbitrary, and that there is no formalistic approach. The Commission has acknowledged the fact that the current case law under Article 82 EC is controversial and is currently working on a review of the provision. It is however doubtful whether the review will have much impact considering that the Commission is bound by existing case law, but possibly it could encourage a development in the future.

This PhD is an examination into some of the costs and benefits arising from the application of the Fair Trading Act 1973 and the Competition Act 1980 to single firm anti-competitive conduct and complex monopoly conduct in the United Kingdom. The theoretical arguments advanced for the application of competition policy generally, along with the costs identified as likely to flow from this policy, are examined in an attempt to devise a criteria by which the application of competition policy in specific casesm ay be assessedE. nforcement activity of the Office of Fair Trading (OFT) and Monopolies and Mergers Commission (MMC) is examined to consider the extent to which previous actions have resulted in outcomes that may be identified or measured. Three specific investigations conducted between 1993 and 1997 are examined in some detail in ChaptersS , 6 and 7. Thesea rc related in Chapter 8 to more general experienceso f thosei nvolved repeatedlyw ith the operation of the regimei n the United Kingdom. The experiencesa nd evidence drawn together in these four chapters have not, to the author's knowledge, previously been so considered or set out. It is shown that the mechanism by which the policy is put into effect is heavily criticised, and that there are aspects of the procedure that impose burdens beyond those necessary to achieve the given result. In this context the experience of the American regime is used as a comparative example. The work concludes with a synthesis of the problems identified, and offers some possible solutions to the difficulties raised by the regime at the time of writing. Some consideration is taken into account of the future shape of the regime following the entry into force of the Competition Act 1998, although much of the work presented here remains valid to the operation of the new regime.

The metered taxi industry has over the years been regulated and controlled by various transport legislation and transport authorities, however because of the nature of the Uber business model, competition laws have been unable to regulate fair competition between Uber, taxi app’s such as Uber (like Taxify) and the traditional metered taxi industry. This dissertation focuses on Uber as a disruptive innovation in the public passenger transport industry. It explores the Uber business model of the online app and explains whether, if at all, Uber does qualify as a disruptive innovation and if so, to what extent does it pose a threat to its competitors in respect of competition issues such as price fixing, predatory pricing, vertical and horizontal agreements and abuse of dominance. In this dissertation I note the importance that regulators and the competition authorities play in venturing out of their comfort zones and re-examine their assumptions underpinning existing competition regulations in respect of new entrants in the market. The dissertation explores whether Uber has in fact operated outside of the competition regulations and whether its existence should be regulated. Moreover, this dissertation explores whether Uber as a disruptive innovation is potentially limiting on competing brands, such as the metered taxi industry and whether the existence of Uber and operation outside of normal competition legislation may cause the foreclosure and exclusion of competitors and therefore substantially limiting or lessening competition in the public passenger transport market. Lastly the dissertation explores how other jurisdictions have regulated any of Uber’s potential competition law infringements. The focus is based on the European Union and the United States of America jurisdictions. / Mini Dissertation (LLM)--University of Pretoria, 2019. / Mercantile Law / LLM (Mercantile Law) / Unrestricted

Competition law has been defined as the rules or provisions which aim to ensure and sustain a market where vigorous, but fair competition will result in the most efficient allocation of economic resources and production of goods and services at the lowest price. The goal, which competition law wishes to attain, is to level the playing field where both small and large firms can compete with one another, fairly and competitively, which in turn leads to a greater benefit for the consumer. South African competition authorities consider cartels as the most egregious of all competition law contraventions because of their harmful impact upon consumers, economic development and the market. Cartel activities are formed in secret and this renders these activities more dangerous, because it is difficult for competition authorities to detect and prosecute them. In South Africa, cartels are regulated in terms of section 4(1)(b) of the Competition Act 89 of 1998, which practices are per se prohibited. Section 4(1)(b) specifically lists the following activities as cartel practices: price fixing, bid rigging and market allocation. Administrative penalties are a common retributive and preventative tool in numerous jurisdictions, including South Africa, which are imposed on firms which participate in cartel activities. Section 59 of the Competition Act postulates that an administrative penalty may be imposed by the Tribunal on a contravening firm, should it be found that such firm has engaged in such prohibited practices. The penalty may be determined and enforced in one of two ways, either unilaterally by the Competition Tribunal in terms of section 59 of the Competition Act, or in terms of a consent agreement concluded between the contravening firms and the Competition Commission, which agreement needs to be approved and enforced by the Tribunal in terms of Section 58 of the Competition Act. The primary objective of the imposition of administrative penalties on cartelists is to both prevent and deter cartel behaviour. It is not a perfect system and has faced its challenges over time. The issues which the competition authorities have had with the imposition of administrative penalties relates to, inter alia, the quantification thereof, the enforcement thereof and the economic and social impact that such penalties have on the contravening firms, its employees and the consumers in general. This dissertation will interrogate the manner in which the competition authorities have approached the imposition of administrative fines. The focus will be on fines imposed for cartel conduct as set out in section 4(1)(b) of the Competition Act. The objective is to determine whether South Africa’s approach to the imposition of administrative fines is in need of reform, and if so, to make suitable recommendations. / Mini Dissertation (LLM)--University of Pretoria, 2020. / Mercantile Law / LLM / Unrestricted

This paper focuses on the common practice in commercial agreements of including exclusivity clauses in shopping centre lease agreements between a supermarket anchor tenant and the landlord of a shopping centre. It is the contention of this paper that such clause s are anticompetitive when considered specifically in light of section 5(1) of the South African Competition Act. In reaching this conclusion, relevant sect ions of the Act will be interpreted and analysed in the pertinent context, as will relevant case law and comparable foreign jurisprudence. The findings of South Africa's Competition Commission in 2013 with regard to the competitive nature of exclusivity clauses in the context of section 5(1), and the basis for their findings will be scrutinised. A conclusion , warranted and supported by the inferences drawn from an analysis of the aforementioned sources (legislation, case law and foreign jurisprudence), will be reached accordingly in support of a stance of resistance against exclusivity clauses in shopping centre leases between landlord and supermarkets . An argument in favour of a blanket prohibition of exclusivity clauses in shopping centre leases due to their anticompetitive nature that outweighs their efficiencies and justifications according to section 5(1) of the Act, is the predominant direction of this paper.

Includes bibliographical references / A principal goal of competition law is to promote fair distribution of wealth. Fair distribution of wealth is entrusted to competitive markets since they reward efficiency, innovation, spread wealth and decentralise economic power. While competition reflects the business conduct of enterprises, it cannot disassociate from the legal and regulatory framework, barriers to entry and prevailing conditions in markets for labour, infrastructure services and other production inputs. Redistribution of wealth acknowledges competition law as a tool that can be utilised to protect those at the lower end of income distribution by reducing prices allowing a larger basket of goods and services to be purchased. Competition law is a tool that preserves market competition to provide an environment that encourages responsive business, efficiency and serves the interests of consumers. In developing countries, competition law and policy receive particular emphasis as being crucial and key in the economic and structural reform and addressing concerns of distribution and power. Competition law in Kenya cannot ignore the wider industrial policy or socio-economic considerations in Kenya. These social and political goals of competition law are important in developing countries with poverty, great income inequality. There is need to choose a means of addressing the equitable allocation of resources that will produce the least amount of inefficiency and competition law is the right tool to achieve this. Kenya is a factor-driven economy where the level of productivity is determined by labour, institutions, infrastructure and the macro-economic environment. Enacting the Competition Act in Kenya was a response to economic and political reform to improve the welfare, well-being and economy in Kenya. Merger analysis in Kenya would require weighing gains and losses in efficiency in order to establish whether the merger will benefit other recipients other than market participants such as consumers and producers. South Africa has well established interpretation and implementation addressing the trade-off between public interest provisions and efficiency. Interpretation of the merger laws in South Africa illustrate engaging an exercise of proportionality required to determine how to balance the competing arguments between efficiency, welfare standards and public interest.

The thesis deals with selected competition issues that occur within the dynamic and high-risk market of shipping, examining competition law issues in liner consortia and tramp pools through an EU Competition Law prism. These partial function joint ventures are the predominant form of alliances in the maritime sector. Liner trade is primarily organised in consortia, while pools are the most common form of tramp shipping alliance. The thesis' synthetic and analytic research incorporates the methodology and structure used in its competition law bibliography, while the legal analysis is informed with sources from microeconomics and maritime economics. The issues that are examined in relation to shipping include the four main areas of competition law: the relevant market, indicators of dominance, compliance of the alliance agreements with Article 101 TFEU and abusive conducts by dominant undertakings under Article 102 TFEU. The development of the above areas aims to demonstrate the interaction of sector particularities with competition law as a whole.

In the strive towards a highly competitive market, the European Commission has long promoted an extensive use of so-called private enforcement, where individuals claim their rights, as guaranteed by the acquis communautaire, before national courts. The incentive to litigate is, mostly, the right to receive damages for loss suffered due to another private party’s violation of the EU antitrust rules, established by the CJEU in its famous ruling in Courage, in 2001.          Lately, the Commission seems to believe that the aim of a more effective private enforcement of antitrust law justifies rather extensive intrusions into the internal legal systems of the Member States. In a White Paper of 2008, the Commission proposed several measures aimed at enhancing the possibilities for individuals to be awarded with compensation for having suffered from a breach of the antitrust rules. These measures include the harmonization of certain national procedural laws, to facilitate inter alia damages claims at a national level. One year later, in 2009, an internal document with a draft for a directive was leaked out from the Commission, which suggests that there are advanced plans for issuing a harmonizing legislation.          Extensive critique has been aimed at the Commission’s proposal, mainly on the basis that procedural rules should be left unaltered by the European Union. Procedural rules are often considered to be the result of careful considerations of specific domestic characteristics and problems, which over time have resulted in a well-balanced internal system based on legal traditions and culture. Even though national rules would still apply in purely domestic situations, it is said that the internal balance of the national procedural systems would be undermined if certain procedural rules were to be harmonized throughout the Union.          This thesis aims at analysing whether the aim of an effective private enforcement of Union competition law does justify a harmonization of procedural rules that could facilitate inter alia private damage claims before national courts. In the case of a confirmative answer, the work also aims at answering to the question of what form such a harmonization should take: should the Commission initiate a legislative process or should it be left to the CJEU to continue developing the state of law through sporadic rulings on the matter? Recourse is made throughout the work to several important general principles of Union law, such as the principles of national procedural autonomy, subsidiarity, and equality. / I sin strävan efter att åstadkomma en marknad med hög konkurrenskraft har Europeiska kommissionen länge förespråkat ett mer extensivt nyttjande av så kallad private enforcement (ung. privat genomförande) där individer åberopar sina rättigheter, som följer av acquis communataire, inför nationella domstolar. Incitamentet för att driva processer består i dessa fall mestadels av rätten att erhålla skadestånd för den skada som klaganden lidit på grund av en annan privat aktörs brott mot konkurrensreglerna, grundad av EU-domstolen (EUD) i målet Courage, 2001.          På senare tid tycks kommissionen anse att målet med en mer effektiv private enforcement rättfärdigar relativt djupa intrång i medlemsstaternas interna rättssystem. I en Vitbok från 2008 föreslog kommissionen flera medel för att förbättra möjligheterna för individer att erhålla kompensation för skada orsakad av konkurrensöverträdelser. Förslagen skulle innebära en harmonisering av vissa processuella regler för att underlätta bland annat skadeståndstalan på nationell nivå. Ett år efter Vitbokens publicering läckte ett annat dokument ut från kommissionen, innehållande ett utkast på ett direktiv som föreslår liknande regler som Vitboken. Detta tyder på att det finns långt skridna planer för att skapa en harmoniserande lagstiftning på EU-nivå.          Omfattande kritik har riktats mot kommissionens förslag, mestadels på grunden att processuella regler bör undanhållas från Europeiska Unionens inflytande. Processuella regler anses ofta vara en produkt av noggranna överväganden av nationella särdrag och problem, som under tidens gång lett till ett välbalanserat internt system baserat på gamla rättstraditioner och rättskultur. Trots att nationella regler skulle fortsätta att gälla för rent interna situationer, påstås det att den interna balansen inom de nationella processuella systemen skulle undergrävas vid en harmonisering.          Denna magisteruppsats syftar till att analysera huruvida målet med en effektiv private enforcement av Unionens konkurrensregler rättfärdigar en harmonisering av processuella regler, för att underlätta bland annat privata skadeståndstalan i nationella domstolar. Om så visar sig vara fallet skall arbetet även undersöka vilken form en sådan harmonisering borde ta: skall kommissionen initiera en lagstiftningsprocess eller skall det vara upp till EUD att fortsätta utveckla det relevanta rättsläget? Under arbetet används genomgående några viktiga generella EU-rättsliga principer som referensramar. Dessa är bland annat principen om nationell processautonomi, subsidiaritet och likabehandling.

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