Competition Flashcards
Article 101 (1) TFEU
Prohibits agreements and arrangements that prevent, distort and restrict competition within the internal market and affect trade between MS
What kind of arrangements does 101 (1) cover
Formal Informal Concerted practices Non binding recommendations if normally complied with Associations eg trade unions
Does 101 (1) apply to horizontal and vertical agreements
Yes
May affect trade - meaning
Possible to foresee it may influence directly or indirectly, actually or potentially
Any effect even if it increases trade
101(2)
Prohibited agreements are void unless offending clause can be severed
101(3)
Exemption from 101(1) when agreement:
Has beneficial affects- need causal link
Allows consumers a fair share of benefit- enough to compensate for any bad effects
Proportional - don’t go beyond what is needed for benefit
No elimination of comp- can still compete on other grounds
Can 101(1) apply to agreements that operate wholly in one MS
Yes - they can still effect trade between MS by discouraging others to trade in that Ms
When does an agreement not effect comp
When together then own less than 10% market of under 15% each
Unless price fixing, market sharing or agreement has as its objective to prevent, restrict or distort comp
What does article 102 mean?
Abuse by one or more undertaking in a dominant position within the internal market or a substantial part of it shall be prohibited where the abuse is capacity of affecting trade between MS
Does article 102 apply to both products and services
Yes
How to identify the relevant market for 102
Product - supply substitution (ease of new supplier entering market) and demand substation (ease of swapping it for something else)
Geographic - how easily are they transported / how far will buyer travel
Temporal- seasonal
How to identify if undertaking is dominant in the market
Size of market share Structure of market Length of time it’s held it’s share IP/ copyrights Resources Vertical influence Conduct
Signs that the undertaking is abusing its dominant position
Unfair pricing or trading conditions Dissimilar conditions for equivalent transactions Extra obs to conclude contracts Abusive discounting Tie-ins Predatory pricing Price based on what market will bare Refusing to supply AS IF OBJEVTIVELY JUSTIFIED
Are signs of abuse always a breach of 102
No- ask if they can be objectively justified
How do you know if a dominant undertaking abusing its dominant position if affecting trade between MS
MAY affect
Direct or indirect, actually or potential effect
Evidence that it might affect trade is enough
