The Bribery Act 2010 415Article 82 outlaws any abuse by one or more organisations of a dominant position within
the EU.
An example of Art. 82 can be seen in United Brands Co vEC Commission (1978). United
Brands, an American undertaking, was dominant with respect to production, distribution
and retailing of bananas within the EU. They were found to be in breach of Art. 82 as a result
of abusing their dominant position on a number of counts, including refusal to supply to an
individual wholesaler and operating discriminatory pricing between customers.
It is crucial to recognise that an undertaking will not breach Art. 82 simply by being dom-
inant in a particular product market. It is only where an undertaking abuses its dominant
position (i.e., takes advantage of the fact) that it will be in breach of Art. 82.
The Competition Act 1998
The Competition Act 1998 is composed of four parts. Part I is divided into five chapters.
Chapter I contains prohibitions which are similar to Art. 81 of the EC Treaty. Chapter II con-
tains prohibitions which are similar to Art. 82. However, the provisions of the Competition
Act apply to practices affecting competition within the UK, rather than within Member
States of the EU.
The Enterprise Act 2002
The Enterprise Act 2002 is mainly concerned with enforcement of competition law. It
does, however, create cartel offences relating to price-fixing, limiting or controlling supply,
market sharing and bid rigging.
Organisations which breach competition law can be fined very heavily.
The Bribery Act 2010
The Bribery Act 2010 has reformed the law by creating new offences relating to bribery. The
previous law was contained in several statutes which were over 100 years old. These
statutes no longer adequately dealt with modern business practices.
The offences
The Bribery Act 2010 has created four new offences relating to bribery.
Section 1 creates the offence of bribing another person. This offence can be committed in
two different ways, known as Case 1 and Case 2. The actus reusof both Case 1 and Case 2
is committed by offering, promising or giving a financial or other advantage to another
person. The mens reaof the Case 1 offence requires that the accused intends the advantage
given (i) to induce a person to perform improperly a relevant activity or function, or (ii) to
reward a person for the improper performance of such a function or activity. It does not
matter whether the person bribed is the same person as the person who is to improperly
perform the activity or function. For example, the offence would be committed by paying a
firm’s manager to make sure that a buying clerk placed an order for goods with a particular
supplier. The actus reusof the Case 2 offence has already been set out: offering, promising
or giving a financial or other advantage to another person. The mens reais that the accused
knows or believes that the acceptance of the advantage would itself constitute the improper
performance of a relevant function or activity. As regards both Case 1 and Case 2, it does
not matter whether the advantage is offered, promised or given by the accused directly or
through a third party.