Competition Law 1: Article 101 TFEU

Question 1

Hofner & Else v Macroton GmbH

Answer 1

An undertaking = every entity engaged in an economic activity regardless of its legal status and the way in which it is financed.

Question 2

MOTOE v Ellinkiko Dimosio

Answer 2

Undertakings can include organisations that lack a profit motive.

Question 3

Diego Cali

Answer 3

An entity will not be considered an undertaking where it is exercising the official authority of the State.

Question 4

Commission v ANIC

Answer 4

It is not necessary for the commission to decide which form of collusion exists before deciding that a breach of Art 101 has occurred.

Question 5

Tepea

Answer 5

‘Agreement’ includes oral agreements.

Question 6

Hercules Chemicals

Answer 6

‘Agreements’ includes gentleman’s agreements or agreements considered to be morally binding.

Question 7

AC Treuhand

Answer 7

Tacit acquiescence can constitute an agreement.

Question 8

Vereniging

Answer 8

Non-binding recommendations made by a trade association can be decisions which are prohibited by Art 101(1) if it has an appreciable influence on competition in the market in question.

Question 9

ANSEAU-NAVEWA

Answer 9

Non-binding recommendations made by a trade association can be decisions which are prohibited by Art 101(1) if it has an appreciable influence on competition in the market in question.

Question 10

ICI v Commission (Dyestuffs)

Answer 10

Defined a concerted practice as: ‘a form of coordination between undertakings which, without having reached the stage where an agreement properly so-called has been concluded, knowingly substituted practical cooperation between them for the risks of competition’.

Question 11

A Ahlstrom Oy v Commission (Wood Pulp Cartel)

Answer 11

Parallel conduct is not proof of concerted practice unless concertation constitutes the only plausible explanation for such conduct.

Question 12

STM

Answer 12

Potential to affect trade:
Established test for determining whether collusion has the potential to affect trade between Member States:
‘It must be possible to foresee with a sufficient degree of probability on the basis of a set of objective factors of law or fact that the agreement in question may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States’.

Object or Effect:
‘Object or effect’ should be read disjunctively.
The object of an agreement is determined by examining its purpose in the economic context in which it operates.

Question 13

Brasserie de Haecht SA v Wilkin-Janssen

Answer 13

A number of small agreements taken collectively may amount to affect the market.

Question 14

Establissements Consten SARL & Grundig-Verkaufs GmbH v Commission

Answer 14

Example of an agreement that directly affected inter-State trade.
Example of a vertical agreement – one between undertakings at different levels of trade.

Object:
No need to consider the actual effect of an agreement when determining whether that agreement is prohibited by reason of its object.

Question 15

GSK v Commission

Answer 15

The intentions of the parties may be relevant in determining the object of the agreement but it is not necessary for them to be taken into account.

Question 16

BIDS

Answer 16

Object of an agreement should be determined objectively.
An agreement will be capable of being prohibited on the basis of its object where it is regarded by its very nature as damaging competition.

Question 17

Groupement

Answer 17

An infringement by object should only be found where the agreement is of a type that is so likely to have negative effects that there is no need to examine the actual effect of the agreement.

Question 18

European Night Services

Answer 18

To determine the effect of an agreement, the conditions in which the agreement functions should be considered:

• Economic Context
• Products or Services covered by the agreement
• Actual structure of market concerned

Question 19

Pronuptia

Answer 19

Franchise agreements will not be prohibited as long as their anti-competitive elements are necessary to achieve their pro-competitive objectives.

Question 20

Metropole Television

Answer 20

A rule of reason approach should not be followed. There is no obligation to weight the pro-competitive effects against the anti-competitive effects of an agreement in the context of Art 101(1). This should be done under Art 101(3).
An anti-competitive restriction would not be prohibited by Art 101(1) where that restriction was ancillary to the agreement and the agreement itself is not anti-competitive. An ancillary restriction is one which is directly related and necessary to the implementation of the main operation.

Question 21

Mastercard

Answer 21

An ancillary restriction is only objectively necessary where the main operation would not be possible to carry out in the absence of the restriction in question.

Question 22

Volk

Answer 22

De minimis defence: An agreement falls outside the prohibition in Art 101 when it has an insignificant effect on the market.

Question 23

Expedia Inc

Answer 23

De minimis defence does not apply where the prevention, restriction, or distortion of competition is the object of the agreement.

Question 24

Transocean Marine Paint Association

Answer 24

If an agreement fulfils the conditions of Art 101(3), it will be granted an individual exemption.

Question 25

Courage v Crehan

Answer 25

Damages can be awarded by a national court for losses caused by a contract or by conduct which infringed Art 101 TFEU.

Question 26

Manfredi

Answer 26

Any individual can claim compensation for the harm suffered where there is a causal relationship between that harm and an agreement or practice prohibited under Article 101.