Article 101 Flashcards
What is necessary for Article 101? ABOMDR
- An agreement
- Between undertakings
- Which has as it’s object or effect the distortion of trade
- Which affects trade between member states
- Defences
- Remedies
Agreements can be oral or “gentleman’s agreements”. Which case?
Quinine Cartel
Regulations promulgated by professional organisations can be agreements. Which case?
Wouters v Algememe
Concerted practices can be agreements. Which case?
Dyestuffs
What is the definition of a concerted practice in Dyestuffs?
“Coordination between parties which falls short of informal agreement but knowingly substitutes practical cooperation for the risks of competition”.
If an oligopoly exists with transparent price structures, this may rebut the presumption of a concerted practice. Which case?
Woodpulp
Either object or effect will be sufficient. Which case?
Société Technique Minière
The test for whether an agreement has an anti competitive object is objective. Which case?
Consten v Grundig
Which case lays out the factors to consider whether an agreement has an anti competitive effect?
Société Technique Minière
What are the factors in Société Technique Minière for an anti competitive effect?
- Nature and quantity of products
- Position of parties in the market
- Severity of clauses
What is the test for determining whether the agreement is between member states?
STM “is it possible to foresee with a sufficient degree of possibility that actually or potentially, the agreement may have an impact on trade between member states.
Potential impact is what is important. Which case?
Consten v Grundig
Any agreement under Article 101(2) is automatically void. True or false?
True
Article 101 is directly effective. Which case?
BRT & Sabam
What does NAOMI stand for?
Notice on Agreements Of Minor Importance
What are the two conditions for the NAOMI restriction to apply?
- The aggregate market share of the parties must not exceed 10% for horizontal agreements.
- The aggregate market share of the parties must not exceed 15% for vertical agreements.
What does NAAT stand for?
No Appreciable Affection of Trade
What are the conditions for NAAT to apply?
- Aggregate market share must not exceed 5%
- For horizontal agreements- aggregate turnover must be less than 40m EUR
- For vertical agreements, supplier turnover must be less than 40m EUR
- Hardcore restrictions allowed
What is the Block Exemption for Vertical Agreements? Regulation 2790/1999
Allows vertical agreements if certain conditions are met
What are the 5 conditions for the Block Exemption for Vertical Agreements to apply?
COMMISSION REGULATION (EU) NO 330/2010
- The market share held by the supplier does not exceed 30 % of the relevant market on which it sells the contract goods.
- The market share held by the buyer does not exceed 30 % of the relevant market
on which it purchases the contract goods or services. - No hardcore restrictions as in Article 4 of the Regulation apply
- The agreement is vertical,.
Parties may exempt themselves from Article 101 if they believe their agreement “improves the production or promotes technical progress”
AND
“consumers have a fair share of the resulting benefit”.
Which Article?
Article 101(3)
Under which Regulation may the Commission arrive unannounced at a firm’s head quarters and undertake “dawn raids”?
Regulation 1/2003
A leniency notice may be issued if the firm does what?
- Complies with the Commission
- Has not coerced others
- Is the first to come forward
Hoffman La-Roche
What is the process for enforcement of Article 101?
- Commission investigates and concludes. May give a fine.
- Company may appeal to the General Court
- Company may appeal to the ECJ
If the case is too minor for the Commission to deal with, what will happen?
The national authorities would deal with the issue.
What must you not forget with Article 101?
Enforcement.
No, seriously. What must you not forget at the end of Article 101?
ENFORCEMENT
Once it has been shown that the object of competition is to distort trade- there is no need to demonstrate that that is it’s effect.
Polypropelene
What is the difference between Dyestuffs and Woodpulp with regards to concerted practices?
In Dyestuffs the company was found to have a concerted practice.
In Woodpulp this was found to be an oligopoly, not a concerted practice.
In which case was an attempt to put a company out of business found to have an effect between trade in the common market?
Commercial Solvents
What is the latin name for the principle which underlies NAOMI?
De minimis
In which case did the ECJ make clear that the NAOMI would apply to small agreements?
Volk v Vervaeke
What is the case for supply substitutability?
Continental Can case
What are the factors in which case for establishing whether an agreement has an anti competitive effect?
Societe Techniche Miniere
a) The nature and quantity of products covered
(b) The position and size of the parties concerned
(c) The isolated nature of the agreement or its position in a series of agreements
(d) The severity of the clauses
(e) The opportunities for other commercial competitors in the same products by way of parallel imports.
What was the ruling in the ‘O2’ case?
The commission found that an agreement between O2 and TMobile was in breach of Article 101, but exempted by Article 101(3).
The General Court found that the agreement was not in breach of Article 101 because it did not distort competition.
In what case was it found that a company with 49% market share was dominant as the nearest rival had 5%?
Commission v British Airways
