Article 101 Case law

Question 1

Tepea v Commission

Answer 1

Oral agreement is a type of agreement

Question 2

Hercules Chemicals NV v Commission

Answer 2

Gentlemen agreements are a type of agreement

Question 3

AC Treuhand AG v Commission

Answer 3

It was held to have participated in the cartel’s agreement even though it was not an actual party to the written agreement between the members of the cartel (a consultancy storing secret documents, collecting and distributing commercial information amongst members

Question 4

Vereniging van Caemethandelaren v Commission

Answer 4

Non binding recommendations also fall within the ambit of article 101(1)

ECJ: held that a system of guide or target prices adopted by a trade association for cement wholesalers in the Netherlands was prohibited by Article 101 TFEU

Question 5

NV IAZ International Belgium v Commission

Answer 5

A trade association for water suppliers was held to have breached article 101 by entering into an agreement with certain other organizations to establish a system to conformity checks and labels for washing machines and dishwashers which was found to have the effect of making imports of washing machines and dishwashers into Belgium impossible or very difficult

Question 6

ICI v Commission (Dyestuff)

Answer 6

Defined ‘concerted practices’
‘ a form of coordination between undertakings, which having reached the stage where an agreement properly so called has been concluded, knowingly substitutes practical cooperation between them for the risk of competition’

Facts: The commission did not have evidence of any agreement or a decision but decided that the competitors had been guilty of price fixing through concerted practices and fined them. This was based on evidence including the similarity of the rate and timing of price increases, the similarity of instructions sent out by parent companies to their subsidiaries and that there have been informal contact between the firms

Question 7

Ahlstrom Oy v Commission (Wood Pulp Cartel)

Answer 7

In this case, parallel pricing was not found by the ECJ to breach Article 101(1) as it was not the only plausible explanation for the parallel conduct and could be explained as a normal feature of that market (e.g. supply or demand)

Question 8

Commission v ANIC

Answer 8

Not necessary for the commission to identify precisely which form of collusion exists – Article 101 distinguishes between these types of agreements and concerted practices only to widen the net

Question 9

STM v Maschinenbau Ulm GmbH

Answer 9

1) the mere potential to foresee that it will affect trade is sufficient
2) an agreement where the pro-competitive effect outweighs its anti competitive effect – potentially no infringement of Article 101 because the effect is not to prevent, restrict, or distort competiton

Facts: concerned a contract under which a German manufacturer granted a French company exclusive rights to sell certain heavy machinery in France. The manufacturer: the objective of the agreement was to open up a new market. ECJ: accepted

Question 10

Brasserie de Haecht Sa v Wilkin –Janssen

Answer 10

The court of justice held that agreements may combine to have a cumulative effect on competition and so the existence of similar contracts was a consideration that could be taken into account

Question 11

Etablissements Consten SARL & Grundig-Verkaufs Gmb

Answer 11

Exclusive distribution agreement

ECJ: the exclusive distribution agreement ( appointed a sole distributor in France and granted exclusive rights to its trademark in France) clearly placed limitations on the freedom of trade between member states

Also the ECJ rejected the argument that Article 101(1) only applies to horizontal agreements

Question 12

Competition Authority v Beef Industry Development Society

Answer 12

It was irrelevant that the parties may have acted without the subjective intention of restricting competition or that the agreement pursues other legitimate objectives (subjective intentions only relevant for Article 101(3))

Question 13

General Motors Nederland BV and Opel Nederland BV v Commission

Answer 13

It is sufficient that the object of the measure is to restrict competition in an indirect way (e.g. in Opel the exclusion of export sales from retail bonuses)

Question 14

European Night Services v Commission

Answer 14

Provides guidance on ‘effect’ of restricting competition

1) Take into account the actual conditions in which it functions (in particular the economic context)
2) The products or services covered by the agreement
3) The actual structure of the market concerned (identify the market – the relevant market will consist of those products which are seen as being interchangeable or substitutable from the perspective of consumers)
4) Unless restrictions may be weighed against their claimed pro-competitive effects only in the context of Article 101(3) of the treaty to grant an exemption from the prohibition in Article 101(1)

Question 15

Pronuptia de Paris Gmbh

Answer 15

Franchise agreement obliged the franchisee to to obtain her supplies only from the franchisor and only sell them in certain shops
Court: such agreements generally enabled independent businessmen to have the chance of establishing themselves in the markets

Question 16

Metropole Television v Commission

Answer 16

the existence of a rule of reason defence under Article 101(1) has since been denied by the Court of First Instance (the General Court)

There was no obligation to weigh the pro-competitive effects against the anti-competitive effects of an agreement in the context of Article 101(1) – it should be done under Article 101(3)

Codified in Guidelines on the Application of Article 81(3) of the Treaty

Question 17

Volk v Vervaecke

Answer 17

An agreement will not be prohibited by Article 101(1) if it does not have an appreciable (significant) effect on either competition or inter state trade

Question 18

Transocean Marine Paint Association

Answer 18

Individual exemption under article 101(3)

Facts: The object of the association was to enable its members to compete in the world marine paint market. This required paint of a standard description to be available in as many ports as possible. Each member was given the exclusive right to promote the sale of the paints in the territory which they were allocated . They could not export the paint to another member’s territory without its consent and could not cooperate with other paint manufacturers without authorization

The commission decided that this agreement enable its members to compete with larger producers of marine paint and so it was entitled to an individual exemption under Article 101(3) TFEU

Question 19

Courage Ltd v Crehan

Answer 19

the ECJ held that damages can be awarded by a national court for losses caused by a contract or by conduct which infringed article 101TFEU