Now showing 1 - 6 of 6
  • Publication
    Safeguarding the Restraint of Trade Doctrine from EU Competition Law: Identifying the Threat and Proposing Solutions
    (Thomson Reuters, 2014-11)
    The EU Council of Ministers is currently considering a Directive on actions for financial damages for infringements of EU competition law. The directive intends to encourage private litigation in national courts where either Art 101 TFEU and/or Art 102 TFEU have been infringed. Art 101 TFEU prohibits anti-competitive arrangements and Art 102 TFEU prohibits the abuse of a dominant position. While the EU directive has been drafted with the involvement of powerful competition law epistemic community of academics and practitioners, little attention has been paid to the implications of increased private litigation of EU competition law for the operation of national law. By taking the perspective of national law, this article examines difficult questions regarding the interface between EU competition law and national law, in particular the Restraint of Trade Doctrine (ROTD), where both legal regimes concurrently apply to a restrictive clause but produce different outcomes.
  • Publication
    Unforeseen Unintended Consequences of Article 3 of EU Regulation 1/2003
    (Sweet & Maxwell, 2006-10)
    Examines Council Regulation 1/2003 Article 3 in order to highlight the changes it occasions to the interface between EC competition law and national law-comprising national competition legislation and other national law. Argues that it produces unintended far-reaching consequences for the vitality of the common law doctrine of restraint of trade.
  • Publication
    EC Competition Policy : emasculating the Common Law Doctrine of Restraint of Trade?
    (Kluwer Law International, 2007)
    Judicial analysis of the interface between EC competition law and the common law is rare. For this reason, the English High Court’s judgment in Days Medical Aids Limited v. Pihsiang Machinery Manufacturing Co. Limited and Ors is of note. This judgment is of enduring interest because its interpretation of EU law emasculates the common law restraint of trade doctrine (‘doctrine’) in respect of some commercial contracts. This note argues that the scope accorded by the High Court to EU law is not necessarily supported by the cited authorities and, further, that it places the longstanding doctrine in a precarious position. It challenges the High Court’s depiction of the relationship between the doctrine and competition law in this case as a contentious one.
  • Publication
    Europeanisation and the restraint of trade doctrine
    (Wiley-Blackwell, 2012-12)
    The common law restraint of trade doctrine continues to provide valuable protection in a variety of business contexts. This paper analyses an incompatibility problem that has arisen between that doctrine and EU competition rules (in particular Art 101 Treaty on the Functioning of the EU [TFEU]) as implemented by EU Regulation 1/2003, which, amongst other matters, delineates the interface between national law and EU competition law. According to the High Court, once a court has applied Art 101 TFEU, Art 3 of the Regulation prevents a court from reaching a contrary finding under the restraint of trade doctrine. Thus, the court cannot find a clause is void under the doctrine if the clause comes within the scope of, but is not prohibited by, Art 101 TFEU. In effect, this conclusion displaces the restraint of trade doctrine for parties who are subject to unreasonable restraints that fall foul of the doctrine but are not prohibited by Art 101 TFEU. The interface problem and the possible solution are presented as issues of Europeanisation. The negative impact on national law deriving from an EU measure is portrayed as a ‘top down’ Europeanisation scenario. A contrary ‘uploading’ perspective reveals how and why Art 3 and associated Recitals in Regulation 1/2003 were ‘constructed’. These findings on the intended scope of Art 3 are used to challenge the High Court's view on the negative implications of the Regulation for the restraint of trade doctrine. Finally, this paper offers specific proposals as to how courts in the United Kingdom and Ireland could ensure that the restraint of trade doctrine is not an inevitable casualty of Europeanisation. It argues that when looking for a solution to the ‘top-down’ Europeanisation problem faced by the restraint of trade doctrine, the ‘uploading’ perspective of Europeanisation suggests a solution.
    Scopus© Citations 6  849
  • Publication
    European Union Antitrust Law & Professional Associations: the Strategic Choice of 'Soft' Weapons by the European Commission
    (University of Tulsa College of Law, 2008-12)
    This article highlights the strategic use of antitrust law initiatives other than formal enforcement decisions by the European Commission (Commission) in respect of professional associations. Increasing the efficiency and competitiveness of professional services in the European Union is part of the strategy voiced by the 2000 European Council in Lisbon to make Europe "the most dynamic knowledge based economy in the world" by 2010.' This article argues that, in its efforts to achieve the Lisbon objective, the Commission is trying to regulate professions to an extent which would not be possible under their formal enforcement powers.