Article 101

Question 1

what is the definition of all agreements

Answer 1

need’nt be binding
applies to vertical and horizontal situations
undertakings outside EU liable if effects felt inside

Question 2

what does it mean for it to be a vertical situation

Answer 2

between manufacturer and dealer

Question 3

what does it mean for it to be a horizontal situation

Answer 3

between manufacturers only

Question 4

what happened in the case of Ahlstrom v Commission

Answer 4

engaged in a concerted practice relating to the prices. the ecj said rasing prices at the same time by the same amount was strong enough evidence of a concerted practce and further. the decisive factor was not where the undertakings were based byt where the agreement was implemented in the EU then the Eu law apply

Question 5

what does undertaking mean

Answer 5

any natural persn (individual) or legal person (economic entity)

Question 6

what does concerted practices mean

Answer 6

practical co-operation knowingly subsituted for risks of competition

Question 7

what happened in the case of imperial chemicals industries v commission

Answer 7

introduced uniform price increases almost simultaneously in 1964, 1965 and 1967. ECJ said parallel behaviour wasn’t per se concerted practice but was very strong evidence of it.

Question 8

What happened in the case of Rhone Poulenc v commission

Answer 8

the applicant took part in meeting at which it disclosed price and production figures to its competitors. This was intended to influence the conduct of the market. Held by the ECJ, mere attendance at meetings would be proof of participation in a concerted practice. as an undertaking would be bound to take into account, information received fair.

Question 9

what could happen when trade is effected between member states

Answer 9

deviation from normal pattern

Question 10

what happened in the case of re vacuum interrupters

Answer 10

concerned an agreement between Uk manufacturers to design and develop gear in the UK. Otherwise they might have tried to develop it independently and market it in otther states - held by the ecj this therefore did affect trade between member states

Question 11

what are the four elements of article 101

Answer 11

1 - find agreement, decision or concerted practice
2 - between undertakings
3 - which affects trades between member states
4 - IMPORTANT - has the actual or potential effect to prevent, restrict or distort within the common market.

Question 12

what happened in the case of Consten SARL v commission

Answer 12

G appointed C as sole distrubtor and gave them the exclusive rights to use g’s trademark. c agreed not to export g’s product to other EU countries. G agreed with c to get similar assurances with similar EU dealers. Another company, U sold g’s product in france at lower prices having bought them in Germany. C sued U for breach of french trademark. ECJ said - the agreement between C & G was in breach of article 101 in particular TERRITORIAL EXCLUSIVITY, prohibition on exports and price fixing were all breaches.

Question 13

what happened in the case of societie technique minier v MBU

Answer 13

STM had the exclusive right to sell in france quipment manufactured by MBU. agreement was similar to those in consten case but had two important differences
no ban on parallel imports or exports and there were no trademakr exclusive licence granting territorial ecj said it was valid

Question 14

what else did th ECJ say in th case of societie technique miniere v MBU

Answer 14

The courts should look at
1 - the nature and quantity of products (aka the product market and the parties share in it)
2 - the position in the market and the importance the parties concerned
3 - whether the agreement was isolated or in a series
4 - the severity of clasuses are they more than is needed for the desired result
5 - the possibility on parallel imports and exports.

Question 15

what happened in the case of VOlk

Answer 15

VK gave VE the exclusive right to distribute in beligium and luxemburg. VK agreed to block parallel imports however VK’s share was very samll at it only consisted of three countries. held by the ECJ - market share was so tiny and could not breach aricle 101

Question 16

What are qualitative clauses and are they in breach?

Answer 16

qualitative clauses are things such as the qualifications of dealer, the suitability of premises.
They are not in breach, if objective, unifrom, non-discriminatory and not beoynd what is necessary

Question 17

what case example is of a qualititative clause

Answer 17

Re Ideal/Standard agreement case
concerned franchises for selling equipment and sanitary ware. had a number of terms in their contract which require all retailers to be specialist. ecj said - plumbing was not technologically advanced to acquire such a complex and exacting selective distribution system BUT provided qualitative clauses regarding staff, the suitability of premises etc these were proportionate - they would not breach article 101

Question 18

what are quantitative clauses and are they a breach

Answer 18

Quantitative clauses are minimum turn over and stocks and prices
usually in breach bu possibly exemptible

Question 19

What are some specific examples of clauses and their potential to breach article 101

Answer 19

1- prices - note centres leclerc v sarl
2- other - protecting manufacturers (re ideal/standard agreement case), protecting distributors )establissement consten sarl

Question 20

what happened in the case of centres-leclerc v SARL

Answer 20

French legislation allowed resale price maintenance for books
ecj allowed this in exceptional circumstances because most EU states allow some form of price maintenance for books and no general EU law provision prohibited it.

Question 21

what happened in the case of publishers association v commission (No.1)

Answer 21

The UK publisher association code of conduct had standard conditions for the fixed price sale of books which covered all books sold in the UK and also exports and reimports. The commission found this to be a breach of article 101 and no exemption applied under article 101(3) - the court agreed.

Question 22

are minimum prices a breach

Answer 22

yes they prevent undercutting of price and therfore competition beyond a certain point

Question 23

are recommended prices a breach

Answer 23

this is risky, they may be a breach if they lead to concerted practice (ie when everyone follows the reccommendation)

Question 24

are maximum prices a breach

Answer 24

They are normally okay as they allow competition on price downwards.

Question 25

what is the only case to prove qualitative clause

Answer 25

er ideal/standard agreements case

Question 26

can “open” exclusive patent licencing agreements (restricting grantors right to compete in licenced territory or grant other licences there) be in breach

Answer 26

They may not be proven in the case of LC nungesser KG v Commission
it concerned the licencing of maize seed and plant breeders rights a specialist form of intellectual property. the licence granted by the IP owner was territorially open in that the licensor agreed not to compete with licencee but other licencess in other member states could. held - as this did not affect trade, all parallel imports from other member states would be permitted.

Question 27

what happened in the case of computerland SA franchising agent

Answer 27

contrast contained a restriction of franchisees rights to open up a business in other franchises territories. the court said this was potentially a breach of article 101 but might well be exemptable under article 101(3) in the call of vertical agreements.

Question 28

what is the rule of reason

Answer 28

A power in which particularly the ECJ has to absolve agreements that might otherwise be a breach of article 101/

Question 29

what happened in the case of rema BV v commission

Answer 29

court held an underatking not to compete by a seller of a business may not violate 101 if the sale of the business is illusory (an illusion)

Question 30

what happened in the case of delimitis v henniger brau

Answer 30

exclusive packagin obligations under a pub tenancy agreement with a brewery was not anti-competitive if it does not prevent access by other brands considering the entire contxt of the market.