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SCHEMES: COMPETITION LAW – AGREEMENTS, DOMINANT POSITIONS & ENFORCEMENT
ARTICLE 101 TFEU
The following shall be prohibited as incompatible with the internal market : ‘all agreements
between undertakings, decisions by associations of undertakings and concerted practices which
may affect trade between Member States and which have as their object or effect the prevention,
restriction or distortion of competition’
IS THE ARTICLE APPLICABLE TO THE CASE?
It is necessary to determine whether the scopes for the applicability of the Article are fulfilled
SCOPES OF THE ARTICLE:
PERSONAL SCOPE: MATERIAL SCOPE: TERRITORIAL SCOPE:
- It applies to - Applies to the entire - the entire EU but also
‘undertakings’ economy unless expressly TCN companies where
- Defined in Hofner: exempted in the Treaties: policies are
‘encompasses every Agriculture; transport; implemented in the
entity engaged in an weapons. EU: ECJ Woodpulp (as
economic activity opposed to the effects
regardless of the legal doctrine applied in the
status of the entity US)
and the way it is
financed’.
- Widely interpreted as
to include Lawyers:
ECJ Wouters
- Sport: ECJ Meca-
Medina
NOT: if the objective is purely
social and not economic: no
undertaking: ECJ Poucet; ECJ
AOK and ECJ SAT v Eurocontrol
CONDITIONS IN ARTICLE 101TFEU
Once it is established that the scopes of the Article are met -> the Article will be applicable to the case.
The next step is to analyse whether it has been breached by assessing the various conditions therein:
1) Undertaking (parties)
2) Agreements, decisions or concerted practices (type of behaviour)
3) Object or effect to prevent, restrict or distort (Ratio)
4) May affect trade between MS (Union dimension)
1. UNDERTAKINGS
Hofner -> ‘Any entity engaged in an economic activity regardless of its legal status and the way
in which it is financed (explain why this is fulfilled!)
- Includes: corporations, partnerships, individuals, trade associations, the liberal professions,
state-owned corporations, and cooperatives)
- Not included: Bodies pursuing social objective, or not engaged in economic activity
, - State-owned: ONLY when they operate commercially, NOT when exercising public law
2. AGREEMENT:
Plurality vs unilateral behaviour (102 TFEU) - There must be at least 2 parties (distinct from
unilateral measures)
quinine cartel -> ‘Informal agreements’ (gentlemen agreements) can be caught
polypropylene -> fulfilled even if ‘oral, no sanctions for breach and not legally binding’, it was
sufficient that the undertakings ‘expressed their joint intention to conduct themselves on the
market in a specific way’.
Tacit agreements -> it is necessary that the manifestation of the wish of one contracting party
to achieve an anti-competitive goal constitutes an invitation to the other party (Meeting of the
minds)
DECISION BY AN ASSOCIATION OF UNDERTAKINGS:
Decisive elements: ability (in fact or law) to influence members behaviour.
CONCERTED PRACTICE:
“Contact but no Contract” :”a form of coordination between undertakings which, without having
reached the stage where an agreement properly so-called has been concluded, knowingly substitutes
practical cooperation between them for the risks of competition” (ECJ Dyestuffs and ECJ Sugar Cartel)
- Fe: exchange of information and intent -
IMPORTANT: Parallel market behaviour as such no sufficient proof only if there is no other
explanation -> oligopolistic market
Issue of whether a concerted practice must have been put into effect (HULS + T-MOBILE)
Burden of proof on the Commission
3. OBJECT OR EFFECT
A balance must be struck: not every contract will lead to an agreement caught by art. 101 TFEU:
- When the object (aim) of the agreement is to prevent, restrict or distort competition illegal
per se; no need to judge the effect (ECJ STM ECJ Consten & Grundig)
If the practice falls under one of the subsections present in Article 101 TFEU it is deemed that the object
itself is to revent, restrict or distort competition. Not relevant the intention of parties BUT agreement per
se!!
OBJECT: EFFECT:
- STM -> words of Article 101 are to be - Where the anti-competitive quality of an
read disjunctively: if the object of the agreement is NOT evident from its object
agreement was anti-competitive then it then it is necessary to consider its effects
could be condemned without pressing o delimitis -> emphasized it.
further, since certain forms of collusion o pronuptia -> there is some weighing of
between undertakings can be regarded, the pro- and anti- competitive effects of
by their very nature, as being injurious to the agreement when considering the
the proper functioning of normal application of Article 101(1)TFEU.
competition. [no effect needed] o metropole -> problematic because the
- FERRIRERE NORD + GLAXOSMITHKLINE -> entire economic context was considered
confirmed this approach. Unnecessary to in the application of Article 101(1) TFEU
demonstrate any actual effects on the and not 101(3) TFEU.
market for such agreements. Proof of the
existence of such agreements will suffice.
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