EU Law W3

Question 1

1 What are the objectives of EU Competition Law and how do they relate to the EU internal market?

1 Efficiency > consumer welfare (optimal allocation resources)

2 Single market
- 4 freedoms > states
- competition law > companies (‘undertakings’)

3 Protecting small firms/consumers

4 Public interest
> we talk about fairness / protect the environment / equality (not so clear)
So other what nothing have to do about competition or is non-economic.

Lawbooks:
The precise of role of EU competition law is contestable. Several objectives of EU competition law can be distinguished.

• Primary objective is to enhance efficiency, in the sense of maximizing consumer welfare and achieving the optimal allocation of resources.
• Another objective is to protect consumers and smaller firms from large aggregations of economic power (e.g. agreements between rival firms or monopolies).
• it facilitates the creation of a single European market and prevents this from being frustated by private undertakings.

The three above mentioned objectives are focused on economic interests. This week’s lecture covered the discussion on non-economic objectives for competition law, i.e. the topic of public interests as objective of competition law. Note that these interests are under debate and the legal certainty is unclear. We could mention a fourth objective of competition law:

• It could additionally be public interests / non-market interests, that are improved / regulated by regulation concerning competition law. E.g., sustainability goals, democracy, free press, free speech, individual autonomy of consumers etc.

Answer 1

1 What are the objectives of EU Competition Law and how do they relate to the EU internal market?

1 Efficiency > consumer welfare

2 Single market
- 4 freedoms > states
- competition law > companies (‘undertakings’)

3 Protecting small firms/consumers

4 Public interest
> we talk about fairness / protect the environment / equailty (not so clear)
So other what nothing has to do about competition or is non-economic.

Question 2

Subject 1: introduction to art. 101 TFEU (cartel prohibition)

art. 101 TFEU, can be characterized as a check against anti-competitive behaviour. Anti-competitive behaviour, can be seen as behaviour that has a bad effect on fair competition within the European market. Art. 101 TFEU is aimed at undertakings, that show prohibited behaviour that harms competition (concurrentie).

Art. 101 (1) TFEU
The following shall be prohibited as incompatible with the internal market:
All agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object of effect the prevention, restriction or distortion of competition within the internal market, and in particular those which:

(a) directly or indirectly fix purchase or selling prices or any other trading conditions;

(b) limit or control production, markets, technical development, or investment;

(c) share markets or sources of supply;

(d) apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;

(e)make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.

Competition law, the area to which articles 101 TFEU and 102 TFEU belong, has always played an important role within the EU and European law. Several goals can be distinguished that competition law tries to achieve:

• Enhance efficiency:
  ‘Maximizing consumer welfare and achieving the optimal allocation of resources’. Goods and services are traded most efficiently when there is well-functioning competition in the market. Agreements between undertakings can have an impact on this competition, which is why art. 101 TFEU was created, to ensure that competition is as efficient as possible.
• Protect consumer welfare:
  Undertakings with significant economic power on the market may be able to conclude agreements with each other, or act in the context of a monopoly, that affects consumer welfare. Competition law seeks to strictly regulate such superpowers and monopolies with efficient competition in mind.
• Creation of a single European Market:
  As explained earlier, the European Union tries to create a single market in which the transport of goods and people, for example, takes place as freely as possible. This free internal market can be disrupted by undertakings (e.g. by an agreement between two companies that goods can only be traded in certain member states). Without competition law we can say the four freedoms would not exist.

Answer 2

Subject 1: introduction to art. 101 TFEU (cartel prohibition)

art. 101 TFEU, can be characterized as a check against anti-competitive behaviour. Anti-competitive behaviour, can be seen as behaviour that has a bad effect on fair competition within the European market.

Question 3

Subject 2: roadmap - the application of art. 101 TFEU

Introduction
If you have already attended the lecture, you will discover that this week is actually a very big roadmap on the application of art. 101 TFEU. In the roadmap below, we set out these steps in detail.

Essentie van het leerstuk
Art. 101 TFEU verbiedt ondernemingen ‘afspraken’ te maken die schade toebrengen aan eerlijke competitie. Als de ondernemingen met het grootste aandeel op de markt samen afspraken maken, zodat het onhaalbaar wordt voor andere ondernemingen om eerlijk te competeren, dan kun je je voorstellen dat de Europese Commissie ingrijpt. Dit betekent natuurlijk niet dat iedere onderneming die niet meer kan bestaan doordat de grotere ondernemingen andere prijzen kunnen handhaven ook beschermd worden door artikel 101 TFEU.

Eerlijke competitie mag, aar wanneer de situatie onder de voorbeelden uit het stappenplan valt, dan is er sprake van ‘kartelvorming’ en kan wel een schending van artikel 101 TFEU aan de orde zijn.

Alle stappen hieronder zullen nodig zijn om te bepalen dat art. 101 TFEU geschonden is. neem deze dus allemaal door en trek daaruit voor iedere stap de juiste conclusie. Je krijgt namelijk ook punten voor iedere subconclusie die je maakt.

Step 1: give an explanation of art. 101 TFEU
When elaborating on art. 101 TFEU, always start by explaining the meaning of this article. So briefly state that art. 101 TFEU prohibits cartels between undertakings by prohibiting agreements that have a negative effect on competition.

Step 2: Are at least two undertakings involved?

Tip:
Voor deze stap komen arresten voor die niet in de jurisprudentiereader staan, maar die je wel op tentamenvraag moet benoemen.

The definition of an undertaking

The definition of an undertaking can not be found in the treaty. In the Hoffner and Elser, Ambulanz Glockner and Pavlov rulings, we find the elaboration and meaning of an undertaking.

According to Hoffner and Elser, an undertaking is ‘any entity engaged in economic activity, regardless of the legal status of the entity and the way in which it is financed’.

Economic activity can be characterized based on Ambulanz Glockner as the offering of goods and services on the market. That, according to the Pavlov case, could at least or in principle be carried on by a private undertaking for profit.

Tip:
Uit deze drie uitspraken kunnen we opmaken dat entiteiten die zich niet inlaten in een bepaalde economische activiteit ook geen undertaking zijn op het gebied van Europees recht.

A parent and subsidiary and a principal and agent

In two situations, art. 101 TFEU can not be applied, which is in the context of a parent and subsidiary and a principal and agent.

In the context of a parent and subsidiary that form a single economic entity, art. 101 TFEU can not be invoked in that relationship. As to whether there is a single economic entity between a Parent and a Subsidiary, we look to the Akzo judgment. If the parent exercises ‘decisive influence’ over its subsidiary, then it can be said to be a relationship to which art. 101 TFEU does not apply. For the assesment you can look at how many shares the parent owns in the subsidiary. If the parent owns 100% of the shares, dominance is presumed.

There is also no applicability of art. 101 TFEU in the relationship between a principal and agent. An agent can sell certain products for its principal. If you can consider the principle and the agent as one undertaking, art. 101 TFEU is not applicable. If the agent bears some commercial risk while selling the prodcuts, then it can not be said that there is a relationship between a principle and agent to which art. 101 TFEU does not apply.

An association of undertakings.

According to the Wouters case, an association of undertakings consist of undertakings of the same general type. The association has the responsibilty of representing the common interests of the undertakings to other economic operators, government bodies and even the public in general. Examples of associations of undertakings are trade associations of umbrella organizations (branchorganisaties of koepelorganisaties) .

Voorbeeld:
De UEFA is een voorbeeld van een association of undertakings. Ieder Europees land heeft zijn eigen voetbalbond (zoals de KNVB) op Europees niveau is het de UEFA die alle landen gezamenlijk vertegenwoordigd en wedstrijden organiseert.

Step 3: is there collusion between the undertakings?

Three forms of collusion can be distinguished:
1 Agreement
2 the decision of an association of undertakings
3 concerted practice

The concept of collusion is based on the principle that every economic entity is free to independently determine the policy it intends to adopt on the market (Anic case).

Step 3a: The agreement (collusion)
It is a more formal way you can conclude collusion, but it does not require the signing of a written contract.
The core of this form of collusion if that there is a concurrence of wills, according to the Bayer case. If the parties express their intention to adopt a common conduct then there is a concurrence of wills and thus a collusion.

An agreement consists of a vertical agreement and a horizontal agreement. A vertical agreement takes place between undertakings that operate on a different market level (a producer with a distributor), whereas a horizontal agreement takes place between undertakings that operate on the same market level (a producer with a producer).

Step 3b: Decision of an assoication of undertakings (collusion)
This requires that you have determined that there is an association of undertakings in step 1 and that common conduct is adopted by the members of the association of undertakings.

Step 3c: Concerted practice (collusion)
An agreement is a more formal way to conclude collusion. A concerted practice is less formal. There is no definition in the threaty.
However, the Dyestuffs case gives us a definition of concerted practice. ‘coordination between undertakings which, without having reached the stage where an agreement, properly so called, has been concluded, knowinly substitutes practical cooperation between them for the risk of competititon.’

The parties to the concerted practice know that if they adopt certain behaviour the outcome comes up that they want. In the Eturas UAB case, several other important considerations emerge about concerted practice:

Para. 42: concerted practice consists of coordination between undertkings, the then adapted market behaviour and the causal relation between both.

• Para. 44: if the undertakings in question are aware of a particular message that indicates anti-competitive behaviour, you can conclude an undertaking involved itself in concerted practice.
• Para. 45: to conclude concerted practice it is important to have ‘objective and consistent indicia’ that it assented to anti-competitive behaviour.
• para. 46: Evidence of concerted practice can be undermined if an undertaking publicly distances itself from anti-competitive market behaviour.

Voorbeeld:
een bedrijf dat zijn prijslijst opstuurt naar andere bedrijven op dezelfde markt zonder dat daar bijv. een boodschap aan kleeft kan gezien worden als concerted practice als je merkt dat de bedrijven in kwestie hun prijzen aanpassen aan de verstuurde prijslijst.

Concerted practice is hard to prove because we can also deal with parallel behaviour. Parallel behaviour is the concept in which undertakings act similarly on the given market. Adopting the same conduct can mean that there is a concerted practice, but it can also mean that it is just a common way in which the parties on the market act. Therefore, it is very hard to indeed prove that there is a concerted practice. If you can conclude that there is a plausible explanation for the parallel conduct then there is no concerted practice. Undertakings have the right to anticipate to their competitors (woodpulp case).

The concept of concerted practice does not require communication. According to the T-mobile case concerted practice can even be concluded based on just one meeting and adapted market behaviour afterwards. Because then you can conclude a certain causal connection between both the meeting and the adapted market behaviour.

Step 4: Does the collusion have an appreciable effect on the competition?

Restrictions can be categorized into two ‘groups’, namely restrictions by object and restrictions by effect.

Step 4 (a) Restriction by object

A restriction by object has at its very nature to harm competition and is presumed to have an appreciable effect on competition. According to the Budapest bank case the ‘legal and economic context’ must be examined in which the coordination between undertakings takes place, but there also has to be reliable and robust experience that the agreement in question has as its nature to harm competition. In the Beef industry case we find the following considerations about restrictions by object:

para 21: To see whether a given collusion is a restriction by object you need to look at the wording of its provisions and to the objectives which it is intended to attain. A given collusion can also have as its object the restriction of competition ‘even if it does not have the restriction of competition as its sole aim but also pursues other legitimate objectives’.

the following enumeration (opsomming) can be seen as restrictions by object:

Horizontal agreements:
- price fixing (prijsafspraken)
- market sharing (marktverdeling)
- limiting output (beperking van output)
- to rig bids
- exchanging information that reduces uncertainty about future behaviour (uitwisselen van info die de onzekerheid over toekomstig gedrag vermindert)
- collective exclusive dealing (collectieve exclusieve handel)
- paying competitors to delay the launch of competition products (concurrenten betalen om lancering van concurrentieproducten uit te stellen)

Vertical agreements:
- imposed fixed or minimum resale prices (opleggen van vase of minimale wederverkoopprijs)
- imposing export bans (opleggen van exportverboden)

Tip:
the first three are the most important to know! so price fixing, market sharing, and limiting output. When undertakings make agreements with each other on who can sell in what area of the market can be seen as market sharing.

uitleg:
Een restriction by object heeft automatisch an appreciable effect on competition. als je dus concludeert dat een bepaalde afspraak een restriction by object is, dan hoeft je geen nader onderzoek te doen of deze restriction by object an appreciable effect on competition heeft.

Step 4 (b) Restriction by effect
A restriction by effect does not have as its nature to harm competition. To conclude the restriction is anti-competitive the effects of the restriction have to be examined. According to the Brasserie de haecht case both the actual and the potential (feitelijke als potentiële) effects must be examined. There are two ways in which you can assess whether a restriction by object has an appreciable effect on competition: the minimus notice and assessing relevant factors with a counterfactual.

The minimum notice is the first way in which a restriction bt object can be assessed:

by a horizontal agreement: aggregate market share (totale marktaandeel) held by the parties to the agreement does not exceed the 10% of any of the relevant markets affected by the agreement.

By a vertical agreement: the market share held by each of the parties to the agreement does not exceed 15% of any of the relevant markets affected by the agreement.

Other relevant factors that can help in the assesment apart from the minimum notice:
- market position of the supplier (leverancier)
- market position of the competitors (concurrenten)
- market position of the buyer
- entry barriers (toegangspoortjes)
- maturity of the market
- level of trade
- nature of the product (aard van product)
- other factors that can be relevant in the specific situation

In the assessment of the other relevant factors a counterfactual needs to be established as well. By establishing a counterfactual, you examine the market with and without the form of collusion to really see what effects there are. If the effects have the effect of damaging competition, then you can conclude that the restriction by effect has an appreciable effect on competition.

Step 5: Does the collusion have an appreciable effect on trade between Member States?

Next, the collusion should have an appreciable effect on trade between Member States. For that, it is important to conduct a pattern on trade test.

You look at whether there is some impact on the exchange of goods and services between member states. According to the STM case, this involves a direct or indirect, actual, or potential impact on trade between Member states.

Tip:
In deze zaak is het dus voldoende dat er een mate van waarschijnlijkheid is dat een bepaalde afspraak effect heeft op de trade between Member States. Deze stap van art. 101 TFEU wordt doorgaans snel aangenomen.

Step 6: Are there exemptions to article 101 TFEU (uitzonderingen)?

Art. 101 (1) can be subject to two forms of exceptions. This can be either a block exemption or the exception described in section 101 (3) TFEU.

Step 6 (a): Block exemption
this exception is applicable if a situation falls unders the Block Exemption regulation.

Tip:
Block exemptionregels komen in deze cursus niet aan bod. Het is belangrijk dat je weet dat deze uitzondering er is, maar de toepassing van de Block exemption is niet nodig.

Step 6(b) Art. 101 (3) TFEU the individual exemption

Art. 101 (3) may also be an exception to section 101 (1).
four cumulative criteria must be completed:

The collusion must improve the production or distribution of goods or promote technical or economic progress:
The negative impact on competition must not overweight the positive effects on the distribution of the products or the technical and economic progress.

The collusion must allow the consumers a fair share of the resulting benefit:
1 efficiencies must be passed on the consumers
2 the cost efficiencies and qualitative efficiencies can be considered
3 the advantages for the consumers must overweigh the negative effects the collusion has on the consumers.

Only forms of collusion that are indispensable to the attainment of the objectives can be exempted:
1 If the absence of the restriction ‘would eliminate or significantly reduce the efficiencies that follow from the agreement or make it significantly less likely that they will materialise’ then you can conclude the restriction is indispensable.

2 It is also important that ‘the resulting efficiencies must be specific to the agreement’. This means there is no less restrictive way the efficiencies can be achieved. The more restrictive the form of collusion the stricter this test is.

The agreement does not allow the elimination of competition:
1 The elimination of competition is not allowed when invoking this exemption
2 the more the collusion reduces fair competition after it occurs the more likely the collusion can be considered eliminating competition.

Tip:
De uitzondering van art. 101 (3) TFEU wordt zeer weinig gehonoreerd. Een voorbeeld waarin art. 101 (3) van toepassing was zien we in de CECED-zaak. Lees deze zaak goed door voor de toepassing van dit gedeelte van art. 101 TFEU

Answer 3

Subject 2: roadmap - the application of art. 101 TFEU

Question 4

T-Mobile Case

Relevantie
Het Europese Hof van Justitie (HvJ) heeft geoordeeld dat een enkele bijeenkomst tussen ondernemingen een onderling afgestemde feitelijke gedraging in strijd met het mededingingsrecht kan vormen. Het hof gaat er met name van uit dat wanneer mededingingsverstorend gedrag plaatsvindt (in dit geval onrechtmatige uitwisseling van informatie), dit gedrag ook na één bijeenkomst gevolgen kan hebben voor de markt, aangezien de deelnemers worden geacht rekening te houden met de informatie die zij hebben ontvangen.

Deze lijn werd (deels) doorbroken in de Budapest uitspraak.

Belangrijkste feiten:
In 2001, five operators in the Netherlands had their own mobile telephone netwokrs, namely Ben Nederland BV (now T-Mobile), KPN, Dutchtone Nv (Orange), Libertel Vodafone (Vodafone) and Telfort Mobiel BV.

A meeting of the representatives of these five operators took place on 13 juni 2001. This meeting discussed, inter alia, the reduction of standard dealer fees for subscriptions on or around 1 september 2001. By decision of 30 December 2002, the Administrative Council of the Netherlands Competition Authority concluded that the five operators had concluded an agreement with each other or had coordinated their actual conduct. Finding that they appreciably restricted competition and were therefore prohibited by national law, the Raad van bestuur van de Nederlandse Mededingingsautoriteit imposed fines (boetes) on those undertakings. These undertakings objected to that decision.

Beoordeling:
The Court of Justice held that the phone companies had engaged in an unlawful cartel, and there was no need to show harm to the final consumer.

With regard to the definition of a ‘concerted practice’, the Court states that it is a form of coordination between undertaking which, without having reached the stage where an agreement properly so-called has been concluded, knowinly substitutes practical cooperation between them for the risks of competition para. 26.

The court then points out that it has already provided a number of criteria for assessing whether a concerted practice is restrictive of competition. These include, in particular, its objective aims and its economic and legal context. Restriction of competition by object already exists if the concerted practice is capable of producing negative effects on competition. In other words, it need only be capable, having regard to its legal and economic context, of preventing, restricting or distorting competition within the common market. para. 31.

moreover, the Court states that a concerted practice may be regarded as having an anti-competitive object even if it has no direct effect on the price paid by end users, but relates only to the fees paid to dealers for taking out subscriptions. para. 36.

Finally, the court observes that any exchange of information between competitors has an anti-competitive object where it is capable of removing uncertainties as to the intended conduct of the undertakings concerned, including where, as in the present case, the conduct relates to the reduction of the standard dealer’s remuneration. The referring court must determine whether the information exchanged at the meeting of 13 juni 2001 was capable of removing such uncertainties para. 41.

Answer 4

T-Mobile Case

Relevantie
Het Europese Hof van Justitie (HvJ) heeft geoordeeld dat een enkele bijeenkomst tussen ondernemingen een onderling afgestemde feitelijke gedraging in strijd met het mededingingsrecht kan vormen. Het hof gaat er met name van uit dat wanneer mededingingsverstorend gedrag plaatsvindt (in dit geval onrechtmatige uitwisseling van informatie), dit gedrag ook na één bijeenkomst gevolgen kan hebben voor de markt, aangezien de deelnemers worden geacht rekening te houden met de informatie die zij hebben ontvangen.

Deze lijn werd (deels) doorbroken in de Budapest uitspraak.

Belangrijkste feiten:
In 2001, five operators in the Netherlands had their own mobile telephone netwokrs, namely Ben Nederland BV (now T-Mobile), KPN, Dutchtone Nv (Orange), Libertel Vodafone (Vodafone) and Telfort Mobiel BV.

Question 5

International Skating Union case
Dit arrest gaat over het leerstuk van art. 101 TFEU, nu de International Skating Union schaatsers verbood om te participeren in wedstrijden die door externe organisaties werden georganiseerd.

Relevant facts:
The International Skating Union (ISU), recognized by the International Olympic Committee as the sole body for administering figure and speed skating, came under scrutiny from the European Commission. The investigation was initiated in 2014 following a complaint from two Dutch speed skaters who were barred from participating in a non-ISU event. In 2017, the Commission found that ISU’s ‘eligibility rules’, which imposed severe penalties on skaters participating in unauthorized events, violated EU competition law (art. 101 TFEU). These rules were seen as restricting athletes freedom to participate in third-party events and thereby preventing alternative organizers from hosting competitions.

Beoordeling:
On the main issue of ISU eligibility rules, the court stated that these rules indeed violate art. 101 TFEU by restricting competition in the worldwide market for international speed skating events. The ISU, as a sports federation, is obligated not to distort competition between different sporting events. The court also noted that the ISU has a ‘conflict of interests’ (belangenconflict) as it not only regulates the sport and authorizes events but also organizes them itself.

while recognizing the ISU’s legitimate concerns for maintaining common standards and protecting the sport against risks like betting manipulation, the court found the rules to be disproportionate to their objectives. The court particularly pointed out that the potential penalties for breaching these eligibilty rules were severe, which contributed to them being deemed as excessive and thus non-proportional.

However, the court disagreed with the commission on the subject of compulsory arbitration. The Commission had viewed ISU’s rules that refer potential plaintiffs to the Court of Arbitration for Sport (CAS) in Lausanne as an ‘aggravating circumstance’, arguing that it made it harder for athletes to enforce their rights under EU competition law. The court, in contrast, found that such an arbitration system is in line with EU law. It stated that the CAS’s unique role could be justified due to the specific needs of sports-related disputes and would bring about procedural uniformity and legal certainty (rechtszekerheid)

The court also pointed out that athletes still have the option to bring an action for damages before a national court, even if they can’t challenge the eligibility decision directly. National courts are not bound by CAS’s assessment and athletes can also take their grievances to national competition authorities, thereby not compromising the full effectiveness of EU competition law.

Answer 5

International Skating Union case

Question 6

HC aant

art. 101 TFEU cartel prohibition

provisions aimed at ‘undertakings’:
- art. 101 TFEU prohibition of anticompetitive agreements
- art. 102 TFEU: abuse of adominance prohibition
- regulation 139/2004: merger control

-
Provisions aimed at member states, in relations with undertakings:
- art. 107 TFEU: state aid provisions
- art. 106 TFEU: undertakings with entrusted tasks.

-
competition rules in member states

All member states: competition law

e.g.: Dutch mededingingswet
- prohibition of anticompetitive agreements
- abuse of dominance prohibition
- merger control

Some MS also have specific rules

institutions involved:
- EU & national law
- European Commission & national agencies
- National courts & EU court
—
Purpose of EU competition law
- Competition: higher consumer welfare (lower prices, more choice, better quality)

• Competition rules create the internal market

No four freedoms without the EU competition rules.

2 main goals in the EU competition law
1 consumer welfare
2 internal market

Answer 6

Hc aant.

Question 7

hc aant 2

Art. 101 TFEU - structure

para. 1 - Prohibition
para 2. Invalidity > nietig
para. 3 Exeption & exemptions)

art. 101 TFEU: 5 cumulative steps

art. 101 (1) TFEU

1 Are there undertakings involved? art. 101 (1) TFEU

2 Is there collusion between those undertakings? art. 101 (1) TFEU

3 Does this collusion have an appreciable object of effect of restricting competition? art. 101 (1) TFEU

4 Does this collusion have an appreciable effect on trade between Member States? art. 101 (1) TFEU

5 Is the exception (or an exemption-rule) applicable? art. 101 (3) TFEU

-
collusion > afstemming (geen precieze betekenis)/samenwerking achtig
-
1 Are there undertakings involved?

Meaning of undertakings

Undertaking: every entity engaged in an economic activity regardless of its legal status or the way in whihc it is financed (Höfner & Elser)

Economic activity
- offering of goods or services on the market (Consten & Grundig) and
- where that activity could at least in principle, be carried on by a private undertaking for profit (Pavlov)

2 Is there collusion between those undertakings?

Collusion overview
- each economic operator must determine independently the policy which it intends to adopt
- collusion/coordinated behaviour is not unilateral

Association of undertakings:
1 agreement
2 decision of an association of undertakings
3 concerted practice

1 Agreement
- There must be a concurrence of wills between the parties (Bayer)
- The form of the agreement is not relevant.
Can also be a oral agreement

2 What is a ‘concerted practice’? = onderling afgestemde feitelijke gedraging
Concerted practice

• Coordination between undertakings which, without having reached the stage where an agreement, properly so called, has been concluded, knowingly substitutes practical cooperation between them for the risks of competition (not Dyestuffs but T-Mobile and Woodpulp case)
  so coordination not an agreement. Some form of afstemming.

What is needed for a concerted practice?
1 some form of collusion
2 some market behaviour that occurs in parallel
3 causal connection between them.

Case C-8/08 T-Mobile
Presumption of ‘causal connection’ between competitor-conduct (meeting)
and conduct on the market based on meeting/exchange of information
between parties
Proof of participation in one meeting is sufficient to prove the participation
in a cartel

the prices the remuneration payments of al these 5 companies goes down at the
same time, if the remuneration payments goes down the consumer prices goes up.

we have parallel market behaviour, because we can absorb this. how do we know they met?
perhaps a reseller said it is weird. I know that in that calendar the 5 companies where on the specific day and time.

Some proof of a meeting, prove that there was a exchanged of information between at least 3 of the 5 companies (they said hmm, and if they said yes I do that to lets agree on that, then it was an agreement). and there was a parallel market behaviour.

there was only one meeting, was that enough to concuted a concerned practice? Court said yes.
How can it be prove that that meeting was the cause of that market behaviour, court said there is a presumption, the companies have to say yes we were there, but that was not the reason why we lower the prices. so they need disprove that.

-

Parallel behaviour ≠ Concerted practice

Woodpulp (C-89/85): “parallel conduct cannot be regarded as furnishing proof of concertation unless concertation constitutes the only plausible explanation for such conduct … economic operators [have] the right to adapt themselves intelligently to the existing and anticipated conduct of their competitors”

In de zaak Woodpulp (C-89/85) wordt gesteld dat vergelijkbaar gedrag van verschillende bedrijven niet automatisch bewijs is van samenwerking, tenzij samenwerking de enige logische verklaring is voor dat gedrag. Bedrijven hebben het recht om zich slim aan te passen aan het gedrag van hun concurrenten, zowel bestaande als verwachte gedragingen. Dit betekent dat ze hun bedrijfsstrategie mogen aanpassen op basis van wat ze zien bij concurrenten, zolang er geen duidelijk bewijs is van illegale samenwerking.

similar behavior of different companies is not automatically evidence of cooperation, unless cooperation is the only logical explanation for that behavior. Companies have the right to smartly adapt to the behavior of their competitors, both existing and expected behavior.

step 3 Does this collusion have an appreciable object or effect of restriction competition?

Restrictions by object or by effect

‘object box’
- by their very nature injurious to the proper functioning of normal competition
- conduct is presumed anti-competitive

‘effects box’
- where a restriction does not have as its object the restriction of competition, it is necessary to prove its restrictive effect.

Unpacking ‘restriction of competition’: central question
Economic/legal question

How would competition have developed without the specific conduct?

What is the impact on competitive parameters, such as price, output, quality, and innovation?

When is something a restriction of competition, if it has a negative effect on competition and consumer welfare.

Unpacking ‘restriction of competition’
important economic distinction between:

horizontal agreements: same place in chain of production; competitors

Unpacking ‘restriction of competition’
another important economic distinction, between:

Interbrand competition: competition between different brands. (nivea and zwitsal)

Intrabrand competition: competition between wholesalers/retailers selling the same brand.

Why are these distinctions important:
horizontal, Interbrand: elimination competition between brands leaves no choice for consumers.

Vertical intraband: restriction of competition within a brand generally leaves choice for consumers for other brands

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What is in object box:
Horizontal agreements:
- fix prices
- share markets
-limit output/sales
- rig bids (i.e. collusive tendering)
- to exchange information that reduces uncertainty about future behaviour
- for collective exclusive dealing
- to pay competitors to delay the launch of competing products.
Vertical agreements
- impose fixed or minimum resale prices
- impose export bans
Marketshare > we are in the same market, but I take Friesland and you Groningen. To limit output > the price goes up.

What is in the effects box then?
where a restriction does not have as its object the restriction of competition, it is necessary to prove its restrictive effect.
Establish actual and potential effects by assessing economic and legal context, including the specificities of the relevant market to form a solid theory of harm:
- it is a vertical or horizontal agreement?
- what category of agreement is it (eg. Franchising, standard setting, cooperation in R&D?)
- what are the market shares involved?
- what is the impact on competition parameters (price, output, innovation); what is the counterfactual?
- what do you know about these types of restrictions from case-law?
- is the restriction of competition an appreciable restriction?

But appreciability = only meaningful restrictions are caugt
- notice on agreements of minor importance which do not appreciably restrict competition under Article 101 (1) of the Treaty on the Functioning of the European Union (‘de Minimis Notice’)

• De minimis notice applicable below certain market shares
• de minimis exception does not cover object restrictions.

De Minimis Notice
horizontal: aggregate market share held by the parties does not exceed 10% on any of the relevant markets affected by the agreement. Where the agreements is made between competitors.

Vertical: market share by each of the parties to does not exceed 15% on any of the relevant markets affected by the agreement. The agreement is made between non-competitors.

step 4 Does this collusion have an appreciable effect on trade between member States?

effect on trade between Member States
- impact on the structure of the exchange of goods and services between MSs (pattern of trade test);
- no need to extend to entire territory of a MS
- direct or indirect, actual or potential impact on trade between MS

Step 5: Is the exception or one of the exemptions applicable?

1 Block Exemption regulation BER (we gaan hier niet na kijken)
2 Individual exceptions art. 101 (3) four cumulative criteria need to be fulfilled:
1 the agreement must lead to an improvement in the production or distribution of goods or the promotion of technical or economic progress;
2 it must allow consumers a fair share of the resulting benefit;
3 the restrictions contained in the agreement must not be indispensable; and (necessary?)
4 the agreement does not afford the parties the possibility to eliminate competition.

Weighing of positive & negative effects, and consumers need not lose more than they gain (and necessity, and no complete elimination of competition).

Why does competition law exist (in the EU)?
1 answer:
- it helps create the internal market
- just as member states are not allowed to limit trade, neither are companies.

2 answer:
- it protects consumer welfare
- consumer welfare is maximized in a well-functioning, competitive market.

3 answer:
- it is about ‘fairness’, about ‘individual economic freedom’

4 answer:
- public interests / non-market interests
as in the free movement provisions there can be a trade off between market and non-market concerns
this can mean: sustainability in the broad sense, but also
democracy, free press, free speech, individual autonomy of consumers, (gender) equality, etc.
very much under debate, legal certainty unclear.

Answer 7

hc aant

Question 8

Kort Art. 101 TFEU stappenplan

Step 1: Are there undertakings involved?
Blauw
Blauw Höfner & Elser case
Roze Consten & Grundig case
Groen Pavlov case
Paars Wouters case > association of undertakings
-
Oranje streep
?‘decisive influence’ over its subsidiary. Case Akso.

Step 2: Is there collusion between those undertakings?
Roze
Blauw 1 Agreement Bayer case
Roze 2 Concerted practice
T-Mobile para. 26
(Woodpulp case) Parallel behaviour ≠ Concerted practice, unless cooperation is the only logical explanation for that behavior
Groen 3 Decisions of an association of undertakings (AoU)
Wouters case
ISU case

Step 3: Does this collusion have an appreciable object of effect of restriction competition?
Groen
Blauw T-Mobile para 27/29 object box
ISU case para 66/67

Horizontal agreements:
- fix prices
- share markets
-limit output/sales
- rig bids (i.e. collusive tendering)
- to exchange information that reduces uncertainty about future behaviour
- for collective exclusive dealing
- to pay competitors to delay the launch of competing products.
Vertical agreements
- impose fixed or minimum resale prices
- impose export bans
–
Roze Effects box
- | (minimis notice)

• counterfactual > market with and without the form of collusion to see what effects there are.
  case CECED,

Step 4: Does this collusion have an appreciable effect on trade between Member State?
Paars
Blauw Consten & Grundig case / STM case > t-mobile (grijs)
- direct or indirect, actual or potential impact on trade between MS (STM case)
(pattern of trade test)

Step 5: Are there any justification? Can the collusion be exempted?
oranje
Blauw 1 Block Exemption regulation BER
Roze 2 Individual exceptions art. 101 (3) four cumulative criteria need to be fulfilled:
1 the agreement must lead to an improvement in the production or distribution of goods or the promotion of technical or economic progress;
2 it must allow consumers a fair share of the resulting benefit;
3 the restrictions contained in the agreement must not be indispensable; and (necessary?)
4 the agreement does not afford the parties the possibility to eliminate competition.

Answer 8

Kort Art. 101 TFEU stappenplan
Step 1: Are there undertakings involved?
Blauw
Blauw Höfner & Elser case
Roze Consten & Grundig case
Groen Pavlov case
Paars Wouters case > association of undertakings
-
Oranje streep
?‘decisive influence’ over its subsidiary. Case Akso.

Step 2: Is there collusion between those undertakings?
Roze
Blauw 1 Agreement Bayer case
Roze 2 Concerted practice
T-Mobile para. 26
(Woodpulp case) Parallel behaviour ≠ Concerted practice, unless cooperation is the only logical explanation for that behavior
Groen 3 Decisions of an association of undertakings (AoU)
Wouters case
ISU case

Step 3: Does this collusion have an appreciable object of effect of restriction competition?
Groen
Blauw T-Mobile para 27/29 object box
ISU case para 66/67

Horizontal agreements:
- fix prices
- share markets
-limit output/sales
- rig bids (i.e. collusive tendering)
- to exchange information that reduces uncertainty about future behaviour
- for collective exclusive dealing
- to pay competitors to delay the launch of competing products.
Vertical agreements
- impose fixed or minimum resale prices
- impose export bans
–
Roze Effects box
- | (minimis notice)

• counterfactual > market with and without the form of collusion to see what effects there are.
  case CECED,

Step 4: Does this collusion have an appreciable effect on trade between Member State?
Paars
Blauw Consten & Grundig case / STM case > t-mobile (grijs)
- direct or indirect, actual or potential impact on trade between MS (STM case)
(pattern of trade test)

Step 5: Are there any justification? Can the collusion be exempted?
oranje
Blauw 1 Block Exemption regulation BER
Roze 2 Individual exceptions art. 101 (3) four cumulative criteria need to be fulfilled:
1 the agreement must lead to an improvement in the production or distribution of goods or the promotion of technical or economic progress;
2 it must allow consumers a fair share of the resulting benefit;
3 the restrictions contained in the agreement must not be indispensable; and (necessary?)
4 the agreement does not afford the parties the possibility to eliminate competition.

Question 9

Art. 101 TFEU stappenplan

Step 1: Are there undertakings involved?

Höfner & Elser case
Entity engaged in economic activity (regardless of its legal status or the way in which it is financed)

Consten & Grundig case
Economic activity > offering of goods or services on the market

Pavlov case
Where that activity could, at least in principle, be carried on by a private undertaking for profit

Wouters case > association of undertakings
Consists of undertakings of the same general type and makes itself responsible for representing an defending their common interests. (Trade Union is a association of undertakings)
-

No undertaking > parent and subsidiary > If it is a single economic entity. The relevant test for the single economic entity doctrine is whether the parent exercises ‘decisive influence’ over its subsidiary. Case Akso.
Also a principal agent relation are excluded from the scope of art. 101 (1) TFEU.

Step 2: Is there collusion between those undertakings?

General principle > is that economic operation must be determined independently the politic which it intends to adopt on the market.

1 Agreement
- Concurrence of wills between the parties (Bayer case), which is a meeting of the minds between parties

• form of agreement is not relevant, can also be a oral agreement or gentleman’s agreements, tacit/explicit.

2 Concerted practice (onderling afgestemde feitelijke gedraging)

Coordination between undertakings which, without having reached the stage where an agreement, properly so called, has been concluded, knowingly substitutes practical cooperation between them for the risks of competition (T-Mobile para. 26 and Woodpulp case)

You need:
1 Form of collusion
2 Market behaviour that occurs in parallel
3 Causal connection between them.

T-Mobile case:
Presumption of ‘causal connection’ between competitor-conduct (meeting) and conduct on the market based on meeting/exchange of information between parties.

Proof of participation in one meeting is sufficient to prove the participation in a cartel.

We have parallel market behaviour, because we can absorb this. how do we know they met?
perhaps a reseller said it is weird. I know that in that calendar the 5 companies where on the specific day and time.

Some proof of a meeting, prove that there was a exchanged of information between at least 3 of the 5 companies (they said hmm, and if they said yes I do that to lets agree on that, then it was an agreement). and there was a parallel market behaviour.

How to prove? often with parallel behaviour + any other indicia (e.g., meetings, exchanges of information) that shows that there is no other plausible explanation (Woodpulp case) > complex and highly technical assessment.

there was only one meeting, was that enough to concluded a concerned practice? Court said yes.

Case T-Mobile
Presumption of ‘causal connection’ between competitor-conduct (meeting)
and conduct on the market based on meeting/exchange of information
between parties. Proof of participation in one meeting is sufficient to prove the participation
in a cartel.

> One meeting is enough, the parallel market behaviour we can absorb it. And to know if that meeting was the cause of that market behaviour the court said there is a presumption. So the companies need to disprove it.

Parallel behaviour ≠ Concerted practice
Woodpulp (C-89/85): “parallel conduct cannot be regarded as furnishing proof of concertation unless concertation constitutes the only plausible explanation for such conduct … economic operators [have] the right to adapt themselves intelligently to the existing and anticipated conduct of their competitors”

In de zaak Woodpulp (C-89/85) wordt gesteld dat vergelijkbaar gedrag van verschillende bedrijven niet automatisch bewijs is van samenwerking, tenzij samenwerking de enige logische verklaring is voor dat gedrag. Bedrijven hebben het recht om zich slim aan te passen aan het gedrag van hun concurrenten, zowel bestaande als verwachte gedragingen. Dit betekent dat ze hun bedrijfsstrategie mogen aanpassen op basis van wat ze zien bij concurrenten, zolang er geen duidelijk bewijs is van illegale samenwerking.

similar behavior of different companies is not automatically evidence of cooperation, unless cooperation is the only logical explanation for that behavior. Companies have the right to smartly adapt to the behavior of their competitors, both existing and expected behavior.

> One meeting is enough (more meetings is more presumption of concerted practice), the parallel market behaviour we can absorb it. And to know if that meeting was the cause of that market behaviour the court said there is a presumption. So the companies need to disprove it. (par. 51,53 > one meeting and parallel behaviour / 59 similar situation some companies met and is one meeting enough to establish this parallel cause of connection)
par. 32 prices verlagen en geen winst maken. most reasonable reason Nitendo komen met iets anders en wij moeten wat special aanbieden zodat onze omzet niet laag gaat. (tegenargument niet interessant)

3 Decisions of an association of undertakings (AoU)

• common conduct adopted by members of an association
  Examples of AoUs: Bar association for lawyers (Case C- 309/99, Wouters); sports federations (e.g., international skating Union in ISU case, UEFA for football).
• A decision by an AoU not prohibited under 101 TFEU if: 1) the restriction on competition pursuits legitimate objectives and 2) it is proportionate to the objectives pursued (ISU case par. 60)

Step 3: Does this collusion have an appreciable object of effect of restriction competition?

How would competition have developed without the specific conduct? What is the impact on competitive parameters, such as price, output, quality, and innovation?

Unpacking ‘restriction of competition’
important economic distinction between:

horizontal agreements: same place in chain of production; competitors

vertical agreements: different places in chain of production

Unpacking ‘restriction of competition’
another important economic distinction, between:

Interbrand competition: competition between different brands. (nivea and zwitsal)

Intrabrand competition: competition between wholesalers/retailers selling the same brand.

Why are these distinctions important:

horizontal, Interbrand: elimination
competition between brands leaves no choice for consumers.

1 Object box
- By very nature injurious to the proper functioning of normal competition.
- conduct (object restriction) is presumed anti-competitive.

Horizontal agreements:
- fix prices
- share markets
-limit output/sales
- rig bids (i.e. collusive tendering)
- to exchange information that reduces uncertainty about future behaviour
- for collective exclusive dealing
- to pay competitors to delay the launch of competing products.

Vertical agreements
- impose fixed or minimum resale prices
- impose export bans

Marketshare > we are in the same market, but I take Friesland and you Groningen. To limit output > the price goes up.

–
Effects box

• Where a restriction does not have as its object the restriction of competition, it is necessary to prove its restriction effect.

When is something a restriction of competition, if it has a negative effect on competition and consumer welfare

• it is a vertical or horizontal agreement?
• what category of agreement is it (eg. Franchising, standard setting, cooperation in R&D?)
• what are the market shares involved?
• what is the impact on competition parameters (price, output, innovation); what is the counterfactual?
• is the restriction of competition an appreciable restriction?

There are two ways in which you can assess whether a restriction by object has an appreciable effect on competition: the minimus notice and assessing relevant factors with a counterfactual.

• De minimis notice applicable below certain market shares

horizontal: aggregate market share held by the parties does not exceed 10% on any of the relevant markets affected by the agreement. Where the agreements is made between competitors.

Vertical: market share by each of the parties to does not exceed 15% on any of the relevant markets affected by the agreement. The agreement is made between non-competitors.

Vraag
Restrictions by object
- T-Mobile par. 29: the distinction between ‘infringements by object’ .. certain forms of collusion by their very nature

• A decision by an AoU not prohibited under 101 TFEU if: 1) the restriction on competition pursuits legitimate objectives and 2) it is proportionate to the objectives pursued (ISU case par. 60)
• ISU, para. 66: very nature, no need to examine their effects’
• Non-exhaustive, open list of restriction by object in art. 101 (1) TFEU.
• ISU para. 67: in order to determine whether an agreement .. may be considered a restriction of competition by object within the meaning of art. 101 TFEU, regard must be had to the content of its provisions, its objectives and the economic and legal context of which it forms part.

> similarly t-Mobile para. 27: with regard to the assessment as to whether a concerted practice is anti-competitive, close regard must be paid in particular to the objectives which it is intended to attain and to its economic and legal context
- question what was the objective of the restriction and the context in the case of ISU?

Court: restriction by object.
extra: staat restriction in art. 101 (1) dan is het restriction by object

Restrictions by effect

A restriction by effect does not have as its nature to harm competition. To conclude the restriction is anti-competitive the effects of the restriction have to be examined.

case CECED,

The behaviour that falls within this category may not have as its object the restriction of competition but can have this effect in practice. As such, behaviour that may fall within the ambit of this category, requires an assessment of the legal and economic context to establish if an appreciable restriction of competition exist.

De Minimis when it is relevant of its propose
> when companies have 10% together in a horizontal agreement (between different companies on the same stage)

> or 15% in a vertical agreement (agreement between companies on different levels)

counterfacting imaging what is the situation in the market with the collusion and without the collusion.
cumulative.

Step 4: Does this collusion have an appreciable effect on trade between Member State?

Pattern on trade test

Consten & Grundig case
Any threat direct or indirect, actual or potential to trade between member state has a effect.

HC: effect on trade between member states
- impact on the structure of the exchange of goods and services between MSs (pattern of trade test)

• no need to extend to entire territory of a Member State
• direct or indirect, actual or potential impact on trade between MS (STM case)

Whether there is a sufficient degree of probability on the basis of a set of objective factors of law or fact. Secondly of there is an influence on the pattern of trade between member states. Thirdly whether there is a direct or indirect actual or potential influence on the pattern of trade.
If involved undertakings hit very little market > no breach of art. 101 TFEU.

Step 5: Are there any justification?

Can the collusion be exempted?

1 Block Exemption regulation BER

2 Individual exceptions art. 101 (3) four cumulative criteria need to be fulfilled:

1 the agreement must lead to an improvement in the production or distribution of goods or the promotion of technical or economic progress;

2 it must allow consumers a fair share of the resulting benefit;

3 the restrictions contained in the agreement must not be indispensable; and (necessary?)

4 the agreement does not afford the parties the possibility to eliminate competition.

Answer 9

Art. 101 TFEU stappenplan
Step 1: Are there undertakings involved?
Höfner & Elser case
Entity engaged in economic activity (regardless of its legal status or the way in which it is financed)
Consten & Grundig case
Economic activity > offering of goods or services on the market
Pavlov case
Where that activity could, at least in principle, be carried on by a private undertaking for profit
Wouters case > association of undertakings
Consists of undertakings of the same general type and makes itself responsible for representing an defending their common interests. (Trade Union is a association of undertakings)
-
No undertaking > parent and subsidiary > If it is a single economic entity. The relevant test for the single economic entity doctrine is whether the parent exercises ‘decisive influence’ over its subsidiary. Case Akso.
Also a principal agent relation are excluded from the scope of art. 101 (1) TFEU.
Step 2: Is there collusion between those undertakings?
General principle > is that economic operation must be determined independently the politic which it intends to adopt on the market.
1 Agreement
- Concurrence of wills between the parties (Bayer case), which is a meeting of the minds between parties
- form of agreement is not relevant, can also be a oral agreement or gentleman’s agreements, tacit/explicit.

2 Concerted practice (onderling afgestemde feitelijke gedraging)
Coordination between undertakings which, without having reached the stage where an agreement, properly so called, has been concluded, knowingly substitutes practical cooperation between them for the risks of competition (T-Mobile para. 26 and Woodpulp case)
You need:
1 Form of collusion
2 Market behaviour that occurs in parallel
3 Causal connection between them.
T-Mobile case:
Presumption of ‘causal connection’ between competitor-conduct (meeting) and conduct on the market based on meeting/exchange of information between parties.
Proof of participation in one meeting is sufficient to prove the participation in a cartel.
We have parallel market behaviour, because we can absorb this. how do we know they met?
perhaps a reseller said it is weird. I know that in that calendar the 5 companies where on the specific day and time.
Some proof of a meeting, prove that there was a exchanged of information between at least 3 of the 5 companies (they said hmm, and if they said yes I do that to lets agree on that, then it was an agreement). and there was a parallel market behaviour.
How to prove? often with parallel behaviour + any other indicia (e.g., meetings, exchanges of information) that shows that there is no other plausible explanation (Woodpulp case) > complex and highly technical assessment.
there was only one meeting, was that enough to concluded a concerned practice? Court said yes.
How can it be prove that that meeting was the cause of that market behaviour, court said there is a presumption, the companies have to say yes we were there, but that was not the reason why we lower the prices. so they need disprove that.
-
Case T-Mobile
Presumption of ‘causal connection’ between competitor-conduct (meeting)
and conduct on the market based on meeting/exchange of information
between parties. Proof of participation in one meeting is sufficient to prove the participation
in a cartel.
> One meeting is enough, the parallel market behaviour we can absorb it. And to know if that meeting was the cause of that market behaviour the court said there is a presumption. So the companies need to disprove it.
Parallel behaviour ≠ Concerted practice
Woodpulp (C-89/85): “parallel conduct cannot be regarded as furnishing proof of concertation unless concertation constitutes the only plausible explanation for such conduct … economic operators [have] the right to adapt themselves intelligently to the existing and anticipated conduct of their competitors”

In de zaak Woodpulp (C-89/85) wordt gesteld dat vergelijkbaar gedrag van verschillende bedrijven niet automatisch bewijs is van samenwerking, tenzij samenwerking de enige logische verklaring is voor dat gedrag. Bedrijven hebben het recht om zich slim aan te passen aan het gedrag van hun concurrenten, zowel bestaande als verwachte gedragingen. Dit betekent dat ze hun bedrijfsstrategie mogen aanpassen op basis van wat ze zien bij concurrenten, zolang er geen duidelijk bewijs is van illegale samenwerking.
similar behavior of different companies is not automatically evidence of cooperation, unless cooperation is the only logical explanation for that behavior. Companies have the right to smartly adapt to the behavior of their competitors, both existing and expected behavior.
> One meeting is enough (more meetings is more presumption of concerted practice), the parallel market behaviour we can absorb it. And to know if that meeting was the cause of that market behaviour the court said there is a presumption. So the companies need to disprove it. (par. 51,53 > one meeting and parallel behaviour / 59 similar situation some companies met and is one meeting enough to establish this parallel cause of connection)
par. 32 prices verlagen en geen winst maken. most reasonable reason Nitendo komen met iets anders en wij moeten wat special aanbieden zodat onze omzet niet laag gaat. (tegenargument niet interessant)

3 Decisions of an association of undertakings (AoU)
- common conduct adopted by members of an association
Examples of AoUs: Bar association for lawyers (Case C- 309/99, Wouters); sports federations (e.g., international skating Union in ISU case, UEFA for football).
- A decision by an AoU not prohibited under 101 TFEU if: 1) the restriction on competition pursuits legitimate objectives and 2) it is proportionate to the objectives pursued (ISU case par. 60)

Step 3: Does this collusion have an appreciable object of effect of restriction competition?
How would competition have developed without the specific conduct? What is the impact on competitive parameters, such as price, output, quality, and innovation?

Unpacking ‘restriction of competition’
important economic distinction between:
horizontal agreements: same place in chain of production; competitors
vertical agreements: different places in chain of production
Unpacking ‘restriction of competition’
another important economic distinction, between:
Interbrand competition: competition between different brands. (nivea and zwitsal)
Intrabrand competition: competition between wholesalers/retailers selling the same brand.
Why are these distinctions important:
horizontal, Interbrand: elimination competition between brands leaves no choice for consumers.
Vertical intraband: restriction of competition within a brand generally leaves choice for consumers for other brands
-
1 Object box
- By very nature injurious to the proper functioning of normal competition.
- conduct (object restriction) is presumed anti-competitive.
Horizontal agreements:
- fix prices
- share markets
-limit output/sales
- rig bids (i.e. collusive tendering)
- to exchange information that reduces uncertainty about future behaviour
- for collective exclusive dealing
- to pay competitors to delay the launch of competing products.
Vertical agreements
- impose fixed or minimum resale prices
- impose export bans
Marketshare > we are in the same market, but I take Friesland and you Groningen. To limit output > the price goes up.
–

Effects box
- Where a restriction does not have as its object the restriction of competition, it is necessary to prove its restriction effect.
When is something a restriction of competition, if it has a negative effect on competition and consumer welfare
- it is a vertical or horizontal agreement?
- what category of agreement is it (eg. Franchising, standard setting, cooperation in R&D?)
- what are the market shares involved?
- what is the impact on competition parameters (price, output, innovation); what is the counterfactual?
- is the restriction of competition an appreciable restriction?
There are two ways in which you can assess whether a restriction by object has an appreciable effect on competition: the minimus notice and assessing relevant factors with a counterfactual.
- De minimis notice applicable below certain market shares
horizontal: aggregate market share held by the parties does not exceed 10% on any of the relevant markets affected by the agreement. Where the agreements is made between competitors.
Vertical: market share by each of the parties to does not exceed 15% on any of the relevant markets affected by the agreement. The agreement is made between non-competitors.

Vraag
Restrictions by object
- T-Mobile par. 29: the distinction between ‘infringements by object’ .. certain forms of collusion by their very nature
- A decision by an AoU not prohibited under 101 TFEU if: 1) the restriction on competition pursuits legitimate objectives and 2) it is proportionate to the objectives pursued (ISU case par. 60)
- ISU, para. 66: very nature, no need to examine their effects’
- Non-exhaustive, open list of restriction by object in art. 101 (1) TFEU.
- ISU para. 67: in order to determine whether an agreement .. may be considered a restriction of competition by object within the meaning of art. 101 TFEU, regard must be had to the content of its provisions, its objectives and the economic and legal context of which it forms part.
> similarly t-Mobile para. 27: with regard to the assessment as to whether a concerted practice is anti-competitive, close regard must be paid in particular to the objectives which it is intended to attain and to its economic and legal context
- question what was the objective of the restriction and the context in the case of ISU?
Court: restriction by object.
extra: staat restriction in art. 101 (1) dan is het restriction by object
Restrictions by effect
A restriction by effect does not have as its nature to harm competition. To conclude the restriction is anti-competitive the effects of the restriction have to be examined.
case CECED,
The behaviour that falls within this category may not have as its object the restriction of competition but can have this effect in practice. As such, behaviour that may fall within the ambit of this category, requires an assessment of the legal and economic context to establish if an appreciable restriction of competition exist.
De Minimis when it is relevant of its propose
> when companies have 10% together in a horizontal agreement (between different companies on the same stage)
> or 15% in a vertical agreement (agreement between companies on different levels)
counterfacting imaging what is the situation in the market with the collusion and without the collusion.
cumulative.

Step 4: Does this collusion have an appreciable effect on trade between Member State?
Pattern on trade test
Consten & Grundig case
Any threat direct or indirect, actual or potential to trade between member state has a effect.
HC: effect on trade between member states
- impact on the structure of the exchange of goods and services between MSs (pattern of trade test)
- no need to extend to entire territory of a Member State
- direct or indirect, actual or potential impact on trade between MS (STM case)
Whether there is a sufficient degree of probability on the basis of a set of objective factors of law or fact. Secondly of there is an influence on the pattern of trade between member states. Thirdly whether there is a direct or indirect actual or potential influence on the pattern of trade.
If involved undertakings hit very little market > no breach of art. 101 TFEU.
Step 5: Are there any justification? Can the collusion be exempted?
1 Block Exemption regulation BER
2 Individual exceptions art. 101 (3) four cumulative criteria need to be fulfilled:
1 the agreement must lead to an improvement in the production or distribution of goods or the promotion of technical or economic progress;
2 it must allow consumers a fair share of the resulting benefit;
3 the restrictions contained in the agreement must not be indispensable; and (necessary?)
4 the agreement does not afford the parties the possibility to eliminate competition.