A critical analysis of the treatment of de facto exclusivity under EU and Maltese competition law

Abstract

This research project will examine de facto exclusivity within Competition law framework in the European Union and in Malta. This is done through recourse to several sources. The bulk of the research project will essentially be an analysis of EU judgments and decisions in relation to de facto exclusivity, mostly with reference abuse of dominance, in terms of Article 102 of the Treaty on the Functioning of the European Union. However, such analysis would be incomplete without also referring to Article 9 of the Competition Act and to local judgments. Section I introduces the areas to be discussed in the research project, particularly the European Union legislation, as well as the Maltese law. Reference is also made to the 2011 amendments to the Competition Act and to the Malta Competition and Consumer Affairs Authority Act, while introducing prohibition decisions and commitment decisions. Section II delves into exclusive dealing and de facto exclusivity, highlighting the purpose of Article 102 TFEU, and then discuss whether there are per se prohibitions as regards exclusivity, and also the effects-based approach. Section III deals with the defences and benefits of exclusivity with reference to several judgments, cross-referring to the Commission Guidance Paper. Section IV discusses in detail Regulation 1/2003, particularly prohibition decisions and commitment decisions, highlighting the differences between them, and by referring to adopted decisions, a conclusion is reached as to how de facto exclusivity has been affected by such Regulation. Finally, Section V elaborates on the conclusions which may be drawn based on the previous sections while proposing amendments to the laws where applicable in relation to de facto exclusivity.