Elaboration of learning objectives problem 1 European Union Law
Shahid & Said, Cases and Materials European Union Law, Second Edition, Eleven, 2022;
R Repasi, EU Law — Treaties and Legislation/European Law — Treaties and Legislation, a
bilingual compilation/a bilingual collection, Boom Leg...
eu law — treaties and legislationeuropean law — treaties and legislation
a bilingual compilationa bilingual collection
2019 f amtenbrink h
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SAMENVATTING European Union Law, ALLE ARRESTEN EN LITERATUUR samengevat (Cijfer: 8)
Uitwerkingen European Union law
Case Study
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What are the rules regarding the prohibition of collusive behavior/cartels in European competition
law?
PLACE COMPETITION RULES
The competition rules in EU law serve a twofold purpose: market integration and the protection of
competition in themselves. As regards the objective of market integration, reference can be made to
the court's decision in COSTEN EN GRUNDIG. It considered that if Member States have to remove
barriers to trade, it cannot be the intention that private parties (companies) should raise them as yet
by means of market-sharing agreements. This reasoning is not limited to Article 101. The market
integration objective of the competition rules leads to a teleological adjustment which has already
been noted in the context of the fundamental freedoms.
The second objective of the competition rules is to ensure that market forces can operate
undisturbed. This functioning of the market mechanism is the object of the economy and a proper
understanding of the competition rules therefore requires some economic understanding. In the GSK
case, the Court gave a clear answer to the question whether the outcomes (consumer welfare) are
the ultimate criterion for whether or not to intervene under competition law. In order to determine a
restriction of competition, it is therefore necessary to consider both the market structure and the
behaviour of the participants and the results thereof. The potential multiplicity of (economic) aspects
that have to be taken into account and may also have to be weighed against each other, makes
competition law a complex field. however, competition law meets this partly because, in certain
cases, the focus is not so much on the objective of undistorted market forces with all its nuances, but
rather on the market integration objective.
FUNDAMENTAL PRINCIPLES OF COMPETITION LAW
The personal scope: the concept of undertaking
EU competition rules apply to companies. For example, Article 101 TFEU prohibits restrictive
practices between undertakings and Article 102 TFEU does not allow undertakings in a dominant
position to abuse that position.
The concept of undertaking thus determines the personal scope of EU competition law.
The starting point of the concept of undertaking is defined in HÖFMER EM ELSER.
It can be inferred from that case that the Court uses a functional concept of enterprise; het is the
function and not the form that determines whether or not an entity is an enterprise. the key
question then is what 'economic activities' are. It can be inferred from, inter alia, the AAMS case that
all entities operating on a market and offering and purchasing their products and/or services there
under market conditions must be regarded as undertakings. There are two exceptions to the concept
of economic activities.
The first exception for government prerogatives was first adopted by the Court in the
SAT/Eurocontrol case. In the judgment in this case, the Court considered that it was first necessary to
examine whether Eurocontrol could be regarded as an undertaking within the meaning of Article 102
TFEU. To that end, the Court had to examine whether eurocontrol's control and security of European
airspace constituted an economic activity. According to the Court, this was not the case, since the
control and security of airspace was a typical public task. In Diego Cali, the exception for
oveheidprerogatives was applied a second time.
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