Competition - Art.101 - Agreements

Question 1

Scope of Art.101(1) - Oral / Gentleman’s Agreement

Answer 1

QUININE CARTEL

Question 2

Scope of Art.101(1) - Decisions by associations of undertakings / trade associations - Need not be legally binding

Answer 2

IAZ NV INTERNATIONAL BELGIUM

Question 3

Scope of Art.101(1) - Regulatory rules promulgated by professional bodies, unless they are reasonable

Answer 3

WOUTERS v ALGEMENE

Question 4

Scope of Art.101(1) - Concerted Practices - Define

Answer 4

Coordination between businesses which falls short of informal agreement but ‘knowingly substitutes practical cooperation between them for risks of competition’ - DYESTUFFS

Question 5

Scope of Art.101(1) - Concerted Practices - Presumptions

Answer 5

(1) Contract between parties and subsequent similar practice
(2) Parallel conduct provided that the conditions of competition are different from those to be normally expected in that market - DYESTUFFS
NB - Presumption rebutted if market is an oligopoly (a market controlled by a small number of undertakings) - May be explained by transparent price structures - WOODPULP

Question 6

Define Undertaking - They must be separate (not Parent/Subsidiary or Principal/Agent)

Answer 6

Any natural or legal person engaged in economic activity - OFT GUIDELINES 403

Question 7

Does the agreement have an Anti-Competitive Object?

Answer 7

Objective test concerning the terms of the agreement - Distortion of competition is enough to trigger Art.101(1) - CONSTEN & GRUNDIG

Question 8

If an agreement contains Hardcore Restrictions it will…

Answer 8

Automatically have an Anti-Competitve Object

Question 9

Does an agreement have an Anti-Competitive Effect? - Apply…

Answer 9

STM Factors

(1) Nature/Quantity of products concerned
(2) Position/Size of parties on market
(3) How isolated was the agreement?
(4) Severity of clauses
(5) Opportunities allowed for other competitors by way of parallel re-exportation and importation

Question 10

Does the agreement Affect Trade Between MS - Apply…

Answer 10

STM Test
It is ‘possible to foresee with a sufficient degree of probability… that the agreement may have an influence, direct or indirect, actual or potential, on the pattern of trade between MSs’
(a) Agreement between parties in same MS
- DUTCH CHOICE COOPERATIVE
(b) Agreement between parties in different MS - WOODPULP

Question 11

Does the agreement Affect Trade Between MS - Consider potential (as well as actual) effect on trade…

Answer 11

CONSTEN & GRUNDIG

Question 12

Does the agreement Affect Trade Between MS - Look at agreement in light of any network of agreements it forms part of (cumulative effect)

Answer 12

BRASSERIE DE HAECHT

Question 13

Does the agreement Affect Trade Between MS - An agreement that in fact increases trade between MSs still affects trade

Answer 13

CONSTEN & GRUNDIG

Question 14

Avoid Breach of Art.101(1) - NAOMI

Answer 14

Horizontal = Combined market share <15%

= Agreement = No appreciable affect on trade
= Hardcore Restrictions = Cant apply NAOMI

Question 15

Avoid Breach of Art.101(1) - NAAT

Answer 15

Aggregate market share <40m EUR

= Agreement = No appreciable affect on trade
= Hardcore Restrictions = Cant apply NAAT

Question 16

Avoid Breach of Art.101(1) - Reg.2790/1999

Answer 16

BLOCK EXEMPTION FOR VERTICAL AGREEMENTS

Art.2(1) Reg.330/2010 - Vertical
Art.3(1) Reg.330/2010 - Supplier and Buyer’s market share <30% (unless exclusive supply obligations - consider only buyers market share)
Art.4(a)+(b) Reg.330/2010 - Does not contain restrictions on buyer regarding territory to which can sell; price fixing

= Presumption of Legality for agreement under Art.1 Reg.330/2010

Question 17

If NAOMI or NAAT apply =

Answer 17

No breach of EU law as the effects of the agreement are so small - VOLK

Question 18

Sanction - Leniency Notice - (1) Whistleblower - (2) Non-Whistleblower

Answer 18

(1) ACRYLIC GLASS - Be first

(2) HOFFMAN LA ROCHE - Provide useful info