ABSTRACT
Chapter 6 on control of abuse of dominance looks at Article 102 TFEU that prohibits the abuse of a dominant position which affects trade between Member States. A dominant position alone is not prohibited, and some form of abusive behaviour is required. A wide range of types of market behaviour can be abusive and the test for determining what constitutes abusive behaviour is very general and open-ended. The competition authorities and courts have focused on certain types of conduct as abusive where it excludes or forecloses actual or potential competition from the market. In particular, there has been considerable focus on certain pricing strategies: discounts and rebates, predatory pricing and margin squeezes; and, refusals to supply a product/service, IPR or essential facility. The UK introduced the Chapter II prohibition, modelled on Article 102, in s 18 of the Competition Act 1998. Section 60 of the Act required its interpretation to be consistent with the interpretation of Article 102 TFEU. Post-Brexit, the new interpretative rule in s 60A allows greater flexibility to the CMA, CAT and courts in interpreting the domestic provision. The Chapter II prohibition ensures the prohibition on abuse of dominance applies to any conduct which affects trade in the UK.
