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Glossary

A list of definitions and links for terms of art in regulation, competition law and economics.

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A

Abuse of a dominant position: Conduct by an enterprise that infringes Article 82 or an equivalent prohibition (for example under the UK Competition Act 1998 or the EEA Agreement).

Article 81: The EC Treaty prohibition of certain anti-competitive agreements. See Article 81.

Article 82: The EC Treaty prohibition of abuse of a dominant position. See Article 82.

Article 86: A provision in the EC Treaty regarding the application of the competition rules to enterprises providing public services or fiscal monopoly functions. See Article 86.

Article 87: The EC Treaty prohibition of unjustified State aids. See Article 87.

B

BAILII: The British And Irish Legal Information Institute. Provides free electronic versions of some judgments of the British and Irish courts. See http://www.bailii.org/.

Beer tie: In a lease for a public house, an obligation on the tenant publican to purchase all or some of the beer sold on the premises from the landlord or a supplier nominated by the landlord, usually at a higher price that that offered by wholesalers to free houses. See The beer tie and competition law.

Buyer market power: The market power held by a buyer that does not face effective competition from other buyers in a relevant buying market.

Buyer power: An ambiguous term which may refer either to buyer market power or to countervailing buyer power. See Countervailing buyer power and buyer market power | viewpoint: Franck.

C

Chancery Division: The division of the High Court (and, separately, the High Court in Northern Ireland) that specialises in equity, intellectual property, company law and competition law cases. Civil cases in England and Wales that raise competition law issues are normally transferred to the Chancery Division in London. See http://www.hmcourts-service.gov.uk/cms/chancery.htm. Some judgments are available from BAILII.

Commission of the European Communities: One of the institutions of the European Union, also known as the European Commission. It has responsibilities for the implementation of EC competition law. See DG Competition or http://europa.eu.int/comm/index_en.htm.

Competition Act 1998: UK statute introducing a prohibition-based competition law, inspired from Article 81 and Article 82. See Competition Act 1998.

Competition Appeal Tribunal (CAT): UK tribunal hearing appeals on decisions by the Office of Fair Trading and sectoral regulators (and in some cases the Competition Commission), and some private competition cases. See http://www.catribunal.org.uk/.

Competition Commission (CC): UK competition authority responsible for in-depth examination of mergers, market investigations and some economic regulation functions. See http://www.competition-commission.org.uk/.

Competition law: The set of laws and regulations governing market behaviour, particularly agreements and practices that restrict competition and the acquisition and use of market power. EC competition law is based on Article 81 and Article 82, supplemented by Council Regulation 1/2003 and the EC Merger Regulation. UK competition law is based on the Competition Act 1998 and the Enterprise Act 2002 (the Fair Trading Act 1973 has now been repealed in its entirety). See also our services on competition law.

Competition policy: The political and analytical debate underpinning the development of competition law. The term is also sometimes used to refer to administrative enforcement of competition law by Government bodies; or to the use of competition analysis in regulatory policy development. See Reckon's services for competition policy.

Consumer Council for Water (CCWater): Representative body for water and sewerage consumers in England and Wales, which took over from WaterVoice on 1 October 2005. See http://www.ccwater.org.uk/.

Countervailing buyer power: The countervailing power of a buyer when it leads to the existence of effective competitive constraints between suppliers in a relevant supply market. See Countervailing buyer power and buyer market power | viewpoint: Franck and Countervailing buyer power in telecoms | viewpoint: Franck.

Countervailing power: The power that may be available to a trader (buyer or seller) to create or reveal effective competitive constraints faced by its counter-parties (sellers or buyers), in particular through the possibility of self-supply and/or of sponsoring the entry of a new competitor.

Court of Appeal: The appeal jurisdiction of the Supreme Court of Judicature in England and Wales. The civil division hears appeals from the High Court, county courts and some tribunals including the Competition Appeal Tribunal. The criminal division hears appeals from the Crown Court. A further appeal lies to the judicial committee of the House of Lords. Questions of EC law arising from any of these courts can be referred to the European Court of Justice. The Court of Appeal in Northern Ireland is a separate institution. Some judgments from these courts are available from BAILII.

Court of First Instance (CFI): A first instance tribunal attached to the Court of Justice of the European Communities (European Court of Justice), which hears (amongst other things) appeals against the European Commission's competition law decisions. See http://curia.europa.eu/en/transitpage.htm.

Court of Session: The highest civil court in Scotland, comprising the Outer House (which hears most first instance cases) and the Inner House (which hears mainly appeals). A further appeal lies to the judicial committee of the House of Lords (or to the judicial committee of the Privy Council on some devolution questions), and questions of EC law can be referred to the European Court of Justice. Some judgments are available from BAILII.

D

Data envelopment analysis: A quantitative method to analyse production functions and certain concepts of efficiency. See Data envelopment analysis.

DG Competition: The Competition Directorate General of the European Commission, which takes decisions on competition law cases (including infringements, mergers and State aid).

Direct effect: In EC law, a Community obligation or right has direct effect if it can be enforced in national courts without the need for any national implementing measure. Some Treaty rights and obligations, such as Article 81, Article 82 and Article 86(2), as well as most rights/obligations arising from regulations or decisions, have horizontal direct effect, in that they are enforceable between all interested parties (subject to control of legality exclusively by the Community courts). Clear and unconditional rights against the State arising from directives (after the implementation deadline), as well as some treaty provisions such as Article 86(1) and Article 87, have vertical direct effect, in that they are only enforceable against the State. Even if a directive does not have direct effect, failure to implement it may expose the State to a claim for damages.

Directly applicable: In EC law, a Community text or rule is directly applicable if it does not require a further implementing measure: for example a regulation covered by Article 249. Directives and (in the UK) treaty provisions are not directly applicable, but they might have vertical direct effects, or give rise to a liability in damages if not implemented through national legislation.

Dominant position: A position of market power held by one or more undertakings in a relevant market that triggers "special responsibilities" to avoid committing abuse under competition law provisions such as Article 82 or the equivalent prohibition in the UK Competition Act 1998.

E

EC Treaty: The Treaty establishing the European Community, part of the system of treaties that define the European Union. It is an amended and consolidated version of the Treaty of Rome. The EC Treaty is the basis of EC law, including EC competition law. See 1997 consolidated version of the EC Treaty.

EEA Agreement: A treaty between all countries in the European Union and Norway, Liechtenstein and Iceland, which establishes the European Economic Area as a free-trade area, as well as the EFTA Surveillance Authority and EFTA Court. The EEA Agreement contains essentially the same competition rules as the EC Treaty. See http://www.eftasurv.int/legaltexts/eeaagreement/.

EFTA Court: Plays a similar role as the European Court of Justice with respect to countries in the European Economic Area which are not part of the European Community. See http://www.eftacourt.lu/.

EFTA Surveillance Authority: Plays a similar role as the European Commission with respect to countries in the European Economic Area which are not part of the European Community. See http://www.eftasurv.int/.

Enterprise Act 2002: UK statute reforming insolvency laws, merger control, market investigations and the respective roles of the Competition Commission and Competition Appeal Tribunal. See Enterprise Act 2002.

European Commission: One of the institutions of the European Union, also known as the Commission of the European Communities. It has responsibilities for the implementation of EC competition law. See DG Competition or http://ec.europa.eu/comm/index_en.htm.

European Communities (EC): One of the three pillars of the European Union (the other two are "common foreign and security policy" and "justice and home affairs"). Following the end of the European Coal and Steel Community, the European Communities comprise the European Community, originally established as the European Economic Community by the Treaty of Rome (1957), and Euratom. The EC created a new legal order, known as EC law, supervised by the Court of Justice of the European Communities (ECJ), and which includes EC competition law.

European Court of Justice (ECJ): The Court of Justice of the European Communities, which decides cases and provides preliminary rulings under EC law. See http://curia.europa.eu/en/content/juris/index.htm.

European Economic Area (EEA): The free-trade area established by the EEA Agreement, which binds all EC countries and three members of the European Free Trade Association (EFTA): Norway, Liechtenstein and Iceland. (Switzerland is a member of EFTA but is not of the EEA.)

F

Fair Trading Act 1973: The main UK competition law statute prior to the enactment of the Competition Act 1998. The Fair Trading Act 1973 has been repealed in its entirety following the enactment of the Enterprise Act 2002.

G

Gas and Electricity Markets Authority (Ofgem): Formal title of the Office of Gas and Electricity Markets, the sectoral regulator and competition authority for the electricity and downstream gas industries in England, Wales and Scotland. See http://www.ofgem.gov.uk/.

H

Hicks efficiency, improvement: See Kaldor-Hicks efficiency, improvement.

High Court: The first instance civil jurisdiction of the Supreme Court of Judicature in England and Wales. Comprises the Queen's Bench Division, Chancery Division and Family Division. Sits at the Royal Courts of Justice in London and in district registries outside London. The High Court in Northern Ireland is a separate (but similar) institution for Northern Ireland. Some judgments from these courts are available from BAILII.

J

June returns: Annual returns on activities, outputs and expenditure produced by the water and sewerage companies in England and Wales for Ofwat. The public version of the June returns is available from the Ofwat website.

Justification: In law, a legitimate reason or explanation for something which would otherwise be illegal. The justification allows the act to be "declared just" i.e. legal; for example self-defence is a justification for homicide.

K

Kaldor-Hicks efficiency: A state is said is to be Kaldor-Hicks efficient if there is no Kaldor-Hicks improvement from that state. This concept is claimed to provide an analytical basis for some forms of cost-benefit analysis of Government policies, programmes or projects. See Pareto improvements and Kaldor-Hicks efficiency criterion.

Kaldor-Hicks improvement: In a trading system with a fixed set of participants, a Kaldor-Hicks improvement is a change that is either a Pareto improvement or such that the "winners" from the change would be able to compensate the "losers" and still be better off (Kaldor criterion) and the "losers" could not afford to bribe the "winners" to prevent the change (Hicks criterion).

M

Market definition: The process of defining the relevant markets. See for example Market definition in the media sector.

Market impact: The impact on market processes of a policy decision. This term is used in particular in the context of the impact of public broadcasting or other media activities on the commercial part of the media sector: see Market impact assessment.

Market power: The power that a firm has in a relevant market in the absence of effective competitive constraints in that market.

Media sector: The sector of the economy encompassing the creation, modification, transfer and distribution of media content for the purpose of mass consumption. See A definition of the media sector.

Monopolies and Mergers Commission: One of the previous names of the Competition Commission.

N

National Audit Office (NAO): The office of the Comptroller and Auditor General, responsible to Parliament for the financial audit and value for money studies of public bodies implementing UK Government policies. See http://www.nao.org.uk/.

Northern Ireland Authority for Energy Regulation (NIAER): Sectoral regulator and competition authority for the electricity and downstream gas industries in Northern Ireland. See http://ofreg.nics.gov.uk/.

O

Objective justification: in EC employment and competition law, an objective justification is a justification that relies solely on facts and legitimate aims which exist outside of the person whose conduct is to be justified.

Office for the Regulation of Electricity and Gas (Ofreg): Sectoral regulator and competition authority for the electricity and downstream gas industries in Northern Ireland (sometimes known as NIAER). See http://ofreg.nics.gov.uk/.

Office of Communications (Ofcom): Sectoral regulator and competition authority for the UK broadcasting and telecommunications industries. See http://www.ofcom.org.uk/.

Office of Fair Trading (OFT): UK competition and consumer protection authority, responsible for the administration and enforcement of consumer protection and consumer credit legislation, the initial review of merger cases, the public enforcement of competition law (concurrently with other regulators in some sectors) and the making of market investigation references. See http://www.oft.gov.uk/.

Office of Gas and Electricity Markets (Ofgem): Sectoral regulator and competition authority for the electricity and downstream gas industries in England, Wales and Scotland. See http://www.ofgem.gov.uk/.

Office of Rail Regulation (ORR): Sectoral regulator and competition authority for the railway industry in England, Wales and Scotland. See http://www.rail-reg.gov.uk/.

Office of Water Services (Ofwat): Sectoral regulator and competition authority for the water and sewerage industries in England and Wales. See http://www.ofwat.gov.uk/.

P

Pareto improvement: In a trading system with a fixed set of participants, a change is a Pareto improvement if it means that at least one participant would favour the effects of change (would be "better off") and no participant would oppose the effects (be "worse off"). See Pareto improvements and Kaldor-Hicks efficiency criterion.

Proportionality: A principle of EC law whereby an act (e.g. by a public authority) is an abuse of power if it imposes greater restrictions than are necessary to achieve the proper purposes of the power in question.

R

Relevant market: In the economic analysis of competition and in competition law, a relevant market is defined to identify the extent (in terms of product, time and/or location) of effective competitive constraints, or the scope of a dominant position. See for example Market definition in the media sector.

S

Special responsibility: In EC competition law, the name given to the duty of an undertaking in a dominant position not to abuse that position. See Article 82.

State aid: In EC competition law, assistance given by the State insofar as it is regulated by Article 87.

Subsidiarity: In the European Union, subsidiarity is a rule whereby action by EU institutions is only permissible if it is necessary to achieve the proper purposes of such action, i.e. if these purposes cannot be sufficiently achieved by institutions of individual States acting independently. Subsidiarity is an application of the principle of proportionality.

U

Undertaking: EC competition law term for an enterprise. An undertaking can comprise several legal entities (e.g. group companies). Public bodies and bodies delivering public services are classified as undertakings in some circumstances: see Fenin.

W

Water merger: A merger between regional water companies. See Water mergers.

Water Industry Commission for Scotland (WIC or WICS): Sectoral regulator for the water and sewerage industries in Scotland. See http://www.watercommission.co.uk/.

Water Services Regulation Authority (Ofwat): Formal title of the Office of Water Services, the sectoral regulator and competition authority for the water and sewerage industries in England and Wales. See http://www.ofwat.gov.uk/.

Waterwatch Scotland: Customer representation body for Scottish Water's customers. See http://www.waterwatchscotland.org/.

Wednesbury unreasonableness: A standard of unreasonableness used in assessing applications for judicial reviews of decisions of public authorities under English law. A decision or reasoning is Wednesbury unreasonable if it is so unreasonable that no reasonable person acting reasonably could have made it. It is possible for a decision to fail a proportionality test without being Wednesbury unreasonable. See The Judge Over Your Shoulder.

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Last changed by Geoff at 9:32 AM on Wednesday 2 July 2008.

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Reckon Open "Glossary" 2008-07-02T09:32:30
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