Revision notes for the LPC Competition elective at the University of Law. Distinction worthy as of academic year 2020/21. Document includes 6 flowcharts and revision notes about the following topics: Article 101, block exemptions, Article 102, merger control, and enforcement of competition law.
Set out the law
Article 101 prohibits agreements between undertakings which may
affect trade between MS, and which have as their object or effect the
prevention, restriction, or distortion of competition
Is there an agreement between undertakings?
Agreements Concerted Practices Undertakings
Defined widely as all commercial Behaviour which “knowingly Virtually all legal or natural
arrangements, including those that substitutes practical cooperation persons carrying on economic or
are informal, oral, or gentlemen’s between competitors for the risks commercial activities, including
agreements (Chemiefarma) of competition” (Dyestuffs) non-profit and public organisations
Could it affect trade between Member States or within the UK?
It must be possible to foresee with a sufficient degree of
probability, on the basis of a set of objective factors of law or
fact, that the agreement in question may have an influence,
direct or indirect, actual or potential, on the pattern of trade
between Member States (Société Technique Minière)
Does it have as its object or effect the distortion of competition?
Object Effect
Agreements which are so injurious to Agreements which have as their actual outcome
competition, that they are by their very nature a an appreciable impact on competition in the
restriction on competition – considering the market – which must be able to be demonstrated
actual effect is not necessary with evidence
NAAT de minimis rule in NAOMI Block Exemption
An agreement will not appreciably An effect agreement will not have The Commission and CMA issue
affect trade if the combined an appreciable impact on block exemptions for different
market shares are 5% and: competition if the parties have: industries:- VRBE is one for vertical
H– combined turnover of €40m H– combined market share ≤ 10% agreements, and TTBER is one for
V– supplier’s turnover is ≤ €40m V– combined market share ≤ 15% technology transfers
Individual Exemption – Art 101(3) and s.9 CA
1. contributes to an improvement in the production/ distribution of goods
or promotion of technical/economic progress
2. consumers will get a fair share of the resulting benefit of the agreement
3. does not impose restrictions which are not indispensable
4. will not afford the possibility of substantially eliminating competition
, What are the potential penalties?
Financial Commercial
The Commission & CMA can fine an undertaking Any agreement will be automatically void, the
up to 10% of their worldwide turnover Commission & CMA can make orders e.g. to
Consider also potential private action and legal implement behavioural/structural remedies, and
expenses of defending any breaches/claims there are reputational concerns to consider
How could the penalties be avoided?
Leniency in the EU Leniency in the UK
Immunity for the first undertaking to submit Type A immunity – first in before an investigation
information to the Commission, and reductions Type B – first in after an investigation starts
for undertakings who provide evidence which has Type C leniency – a reduction of up to 50% for
significant added value (up to 50%) provision of significant added value
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