Art 101

Question 1

Undertakings - definition

Answer 1

Höfner and Elser v Macrotron; Pavlov and Others

Question 2

Questions to determine if 101 applies

Answer 2

1. Is there an agreement?
2. Is it between undertakings?
3. Does it affect trade between member states?
4. Does it have an appreciable affect on competition?
5. Does it have the object or effect of restricting competition?
6. Does it qualify for exemption? 101(3) individual or block?

Question 3

An undertaking does not have to be profit making.

Answer 3

Ambulanz Glockner

Question 4

Not an undertaking if a public authority.

Answer 4

SAT v Eurocontrol ; Diego Cali.

Question 5

Solidarity

Answer 5

Poucet & Pistre

Question 6

Agreement

Answer 6

Mutual concurrence of wills
Can be oral, does not have to be legally binding
No important distinction with concerted practices
Problem of unilateral agreements – parallel trading

Question 7

Unilateral agreements

Answer 7

Ford

Question 8

Concerted practices

Answer 8

ICI v. Commission (Dyestuffs)

Question 9

Trade between Member States

Answer 9

Société Technique Minière [1966] ECR 235

Commission Guidelines on the effect on trade concept (2004)

Question 10

Appreciable effect on competition

Answer 10

Case 5/69 Völk [1969] ECR 295
Commission Notice on Agreements of Minor Importance [2001] OJ C368/13
Competitors – aggregate under 10%
Non competitors – each under 15%
Does not apply if hard core restrictions present