Competition - Collusion - Art 101 Flashcards
Aims of EU Competition Law
- To promote a competitive market economy
- To prevent barriers to the integration of a single, internal market.
Article 101 TFEU
Prohibits anti-competitive collusion between individuals, companies and other undertakings.
Article 102 TFEU
Prohibits the abuse of a dominant person within a market.
Regulation 1/2003
Modernisation Regulation – concerned with processes of enforcement of Art 101 and 102
Regulation 330/2010
Grants block exemptions for ‘vertical agreements’ which would otherwise breach Art 101 TFEU
Structure of Article 101 TFEU
Key Elements of Art 101 TFEU
Hofner v Else [1991]
Undertakings
- ‘Undertakings’ encompasses every entity engaged in an economic activity
-
regardless of
- the legal status of the entity and
- the way in which it is financed
-
regardless of
MOTOE v Elliniko Dimosio [2008]
Undertakings
Undertakings can include organisations that lack a profit motive.
Diego Cali [1997]
Undertakings
- An entity will not be considered to be an undertaking where it is exercising the official authority of the State.
- Company given exclusive concession by port authority of Genoa to monitor/clean up oil spillages. CoJ held as performing a regulatory function on behalf of the state. Wasn’t engaged in an economic activity in which services were being offered on the market. Therefore, not an undertaking.
2 Problems with Article 101(1) TFEU
- Drafted so widely it catches a wide variety of contracts which contain some type of restraint.
- Contracts and agreements often complex – contain clauses that increase competition and clauses that restrict it.
- Interpretation of Art 101(1) and Art 101(3) entails balancing such factors and studying relevant market closely.
3 types of Collusion under Article 101(1) TFEU
- Agreements between undertakings
- Decisions by associations of undertakings
- Concerted Practices
Commission v ANIC [1999]
Not necessary for the Commission to identify precisely which form of collusion exists before deciding that a breach of Art 101(1) has taken place.
Hercules Chemicals NV [1991]
Agreements between Undertakings
- “[I]t is sufficient if the undertakings… have expressed their joint intention to conduct themselves on the market in a specific way”
- Here, a gentleman’s agreement held to fall within Art 101
Tepea [1978]
Agreements between Undertakings
Oral agreements between undertakings may fall within Art 101 TFEU
AC Treuhand [2008]
Agreements between Undertakings
- Tacit acquiescence between undertakings falls within Art 101
- Consultancy firm contributing actively and intentionally to a cartel held to participate in their agreement even though wasn’t party to a written agreement with members of cartel.
Bayer AG [2000]
Agreements between Undertakings
Unilateral conduct by an undertaking does not constitute an agreement within Art 101.
- Manufacturer of medicines held to have acted unilaterally when it imposed an export ban on French/Spanish wholesalers. Wholesalers had not acquiesced and there was no agreement between them and manufacturer.
Vertical agreement
Agreements between undertakings at different levels of trade and industry
e.g. manufacturer and distributor, distributor and retailer
Horizontal agreement
Agreements between undertakings at same level of trade and industry,
e.g. 2 manufacturers
Associations of Undertakings
- Associations that undertake activities such as promotional campaigns, public education, market research, and setting of standards, e.g. Trade associations or Co-operatives.
- Decisions that fall within Art 101(1) include both binding and non-binding recommendations.