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Summary Anti-competitive Agreements, Decisions and Concerted Practices

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- Article 101 TFEU - Chapter 1, Competition Act 1998 - Section 1, Sherman Act

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  • March 17, 2020
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Anti-competitive Agreements, Decisions and
Concerted Practices


ARTICLE 101 TFEU

a) Article 101 TFEU - Prohibition

1) 2 or more undertakings

 Legal or natural persons carrying on economic/commercial activities - [Hofner and
Elser]
 Must form separate economic entities.
o Companies, partnerships, sole traders, non-profit making organisations.
 Successor firms (merger) - [Compagnie Royale]
o Liability cannot be avoided by subsequently forming part of another
organisation > Liability imposed on former entity => Successor firm.

Exceptions

 Parent & subsidiary cos > One single economic entity.
 Agency agreements > If financial/commercial risk of agent’s activity is borne by
principal.
o ‘Guidelines on Vertical Restraints’ > Determines whether or not agent (not
principal) has taken on financial/commercial risk.
o Did agent pay for sales or promotional material?
o Did agent maintain stock at its own cost?
o Did agent offer after-sales service?

2) Agreements/Decisions/Concerted practices

Agreements

 In writing/orally
 Non-legally binding ‘gentlemen’s agreements’ - [Chemiefarma]

Decisions by associations of undertakings

 Decisions by trade associations > Industry trade group, business association, sector
association).

Concerted practices

 Businesses knowingly cooperate with each other rather than take risks against
each other > Announces price increases at the same time > ‘Parallel pricing’
[Dyestuffs]
 UNLESS market is ‘oligopoly’ - [Woodpulp]
o Oligopoly occurs where market is controlled by few undertakings > Parallel
conduct is often regarded as natural economic phenomenon.

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