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The interface between competition law and the restraint of trade doctrine for professionals: understanding the evolution of problems and proposing solutions for courts in England and Wales

Lucey, Mary Catherine (2012) The interface between competition law and the restraint of trade doctrine for professionals: understanding the evolution of problems and proposing solutions for courts in England and Wales. PhD thesis, The London School of Economics and Political Science (LSE).

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Abstract

This research considers the interface between the restraint of trade doctrine (hereinafter ROTD) and competition law in England and Wales (comprising the UK Competition Act 1998 and Articles 101-102 TFEU). The ROTD and competition law overlap in cases where both laws appear to be applicable to certain restrictions on professionals (e.g. non-competition clauses). It will be argued that the ROTD and competition are different legal regimes whose prima facie concurrent applicability creates an interface problem for some professionals who are precluded from relying on the ROTD to resist a particular restriction. The most acute problem, in cases of overlap, arises where a restriction does not infringe competition law but falls foul of the ROTD. By examining developments in UK law and in EU law this study analyses how the interface problem evolved incrementally. UK competition legislation may be interpreted so that the ROTD applies only in a residual fashion. Moreover, Art 3 of EU Reg. 1/2003 delineates the interface between EU competition law and national competition law. The High Court has interpreted Art. 3 so that once EU competition law is applied to a restriction the court cannot reach a different conclusion under the ROTD. For reasons of consistency, this conclusion may also hold true for the interface between the ROTD and UK competition law. The scale of persons affected by this problem becomes greater if some professionals in employment are classified as “undertakings” because such classification would increase the overlap and interface between competition law and ROTD. This thesis proposes fresh solutions for courts when applying the ROTD. The solutions aim to ensure the availability of the ROTD’s unique protection to professionals who are subject to restrictions to which competition law also applies.

Item Type: Thesis (PhD)
Additional Information: © 2012 Mary Catherine Lucey
Library of Congress subject classification: K Law > KD England and Wales
Sets: Departments > Law
Supervisor: Collins, Hugh and Monti, Giorgio and Maher, Imelda
URI: http://etheses.lse.ac.uk/id/eprint/570

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