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Cartels I: Jurisdictional Aspects
Art. 101 TFEU: this article outlaws’ anti-competitive collusions between undertaking,
which is ‘cartels’.
Para 1 prohibits as incompatible with the internal market collusions between undertakings,
that are anti-competitive by object or affect trade between Member States.
Para 2 determines that illegal collusive practices are automatically void and can’t be
enforced in court.
Para 3 exonerates certain collusions that are justified if they have pro-competitive effects
for the Union economy.
a. The Concept of ‘Undertaking’
Case Law: Höfner case (Page 94) – part 2 –
Para 21: ‘Every entity engaged in an economic activity, regardless of the legal status of
the entity and the way in which it is financed.’
This definition ties the notion of undertaking to an activity, is functional and broadens the
personal scope, which may include entities which formally would be regarded as
companies.
Advantage: flexibility
Disadvantage: uncertainty, for entities, depending on its actions whether they are an
undertaking within EU competition law.
Economic activities are: ‘any activity consisting in offering goods or services on a given
market is an economic activity’ – according to the court.
This definition is held to exclude consumption (thus consumers) from the scope of this
article.
A private body may thus not count as an undertaking, where it is engaged in ‘a task in the
public interest which forms part of the essential functions of the State’.
What is essential public function? Court refuses to give a historical or traditional
understanding of public services.
In Höfner & Elser it consequently found that ‘[t]he fact that employment procurement
activities are normally entrusted to public agencies cannot affect the economic nature of
such activities’, since ‘[e]mployment procurement has not always been, and is not
Literature: Chapter 17, pp. 686-710, p. 712, pp. 717-733;
Brief: Article 101 TFEU; Prohibition of anti-competitive agreements
Brief: Article 102 TFEU; Abuse of dominant position
Articles: European Commission, ‘The European Union explained: Competition’,
Luxembourg: Publications Office of the European Union, 2014
Cases: Höfner and Elser, Consten and Grundig, Bayer, Société Technique Minière,
Delimitis, Hoffmann-La Roche, CEWAL, Paiu, AKZO, Microsoft
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