EU Competition Law - Field of Application

Question 1

Three lines of defence

Answer 1

1. field of application (scope)
2. restriction of competition/ anticompetitive practices (branch)
3. exceptions/exemptions (justification)

Question 2

Field of application, general definition

Answer 2

Every entity engaged in an economic activity regardless of the legal status of the entity and the way it is financed

Question 3

Scope: Undertaking (ratione personae)

Answer 3

"Any entity"...
– entity: look at economic reality
– groups: intra group immunity (Viho)
– employers employees: ‘labour exemption’
– succession of companies
– public and private

… “engaged in economic activity” (case law not consistent -> Diego Cali vs. Ambulanz Glöckner; also may differ between MS)

Question 4

Undertakings in the sharing economy

Answer 4

ECJ: FNV trade union v Dutch State (2014):
- collective bargaining agreements between employees and employers do not fall under 101 (1) TFEU; also false-self-employed -> not in scope

Question 5

Scope: Branch/sector (ratione materiae)

Answer 5

All sectors
– but: agriculture (French Endives), transport
– but: arms, munitions and war material (346 TFEU)
– but: block exemptions

Question 6

Scope: Location (ratione loci)

Answer 6

• EU comp law applies where EU law applies
  
  • > implementation doctrine (effects doctrine)
• must affect trade between Member States “to an appreciable extent”:
  2004 EC Guidelines :
  > 5% aggregate market share on any of markets concerned OR
  aggregate EU turnover in product covered > 40 mio.