Article 101(3)

Question 1

Four cumulative conditions

Answer 1

The agreements etc. contribute to improve the production or distribution of goods or to promote technical or economic progress,

Allowing consumers a fair share of the resulting benefit, and which does not:

Impose on the undertakings concerned restrictions, which are not indispensable to the attainment of these objectives; nor

Afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question

Art. 101(3) applies only for as long as the conditions are met

Question 2

Burden and standard of proof

Answer 2

Art. 101(1) –> The Commission

Art. 101(3) –> The undertakings

Wheigh the negative and positive effects of the agreement

Question 3

1. Improvement in production

Answer 3

Must produce objective advantages
- Ability to compensate for disadvantages
- Improvement of production, distribution or technical or economic progress

Economic and non-economic benefits
- Discussion whether social policies should be considered
- Narrow –> Should only balance the restricitve effects under art. 101(1) against enhancement and efficiency under art. 101(3) (only economic benefits)
- Broad –> Should consider the benefits for society as a whole (climate, employment)

Question 4

3) Indispensability of the restriction

Answer 4

The effeciencies must be specific to the agreement
- No other economically practical and less restricitve means of achieving the efficiencies

The restrictions must be indespensible to attain the effeciencies
- The absence of the restriction would eliminate or significantly reduce the efficiencies or make it significantly less likely to achieve

Question 5

2) Fair share for consumers

Answer 5

Consumers must obtain greater benefits than the anti-competitive disadvantage imposed on them
- fx if agreement leads to higher prices, consumers must be compensated by better quality

Consumer
- Producers
- Wholesalers
- Retailers
- Final consumers

If two or more groups of consumers affected, all the groups must get a fair share
- Negative effects in one market cannot be balanced by positive effects in another market

Question 6

4) No elimination of competition in a substantial part of the market

Answer 6

The more competition is already weakened and the more the agreement will reduce competition, the more likely that the agreement will eliminate competition subsantially