Restiction of competition Flashcards
Requirements
- Affecting trade between Member States
- Agreements, decisions and concerted practice
- Undertakings
- Restriction of competition
By object
If an agreement has as it object to restrict competition, there is no need to look at the effects
- Looks at the agreements content, its objectives and the legal and economic context
Sufficient degree of harm to competition
- The agreement has the potentiel to have negative impact on competition
- Has to be interpreted restrictively
Horizontal
- Price fixing
- Exchange information thet reduces the uncertainty about future behaviour
- Divide markets (markets and customers)
- Limit output
- Limit sales
- Exclusive dealing
- Pay for delays
Vertical
- Impose fixed og minimum sales price
- Export bans
By effect
Liable that the agreement have an appreciable adverse impact on the paramaters of competition
- Price, quality and quantity of goods and services
Factors to consider
- Is there a restriction of competition?
- Does the agreement contribute to the indentified restriction? Is there a casual link?
Looks at the economic and legal context
- Full analysis of the agreement within its market context
Restriction of competition either by the actual effects or the potentiel
Counterfactual
- How would the market have developed without the agreement
Ancillary restraints/objective necessity defence
- Restriction that is objectively necessary for the agreement
- Not enough if without the restriction the agreement is more difficult to implement or less profitable
- Example: Non-compete obligation on the seller of an undertaking
De minimis
Agreements caught by art. 101(1) will not be prohibited where the agreement does not have an appreciable impact on competition
Safe harbour for agreements below the threshold, but not an indication of restriction if above
By object
- The deminimis doctrine does not apply
By effect
Except for hard-core restrictions, undertakings with a combined market share below:
○ 10 % if horizontal, and
○ 15 % if vertical, or
○ SME (under 250 employees or under 50 mio in turnover)
Can be considered de minimis and consequently outside the scope of Article 101
The effect on trade between Member States
If effect on trade between member states
- Member States, national courts and NCAs have an obligation to apply art. 101 and 102
- Cannot apply stricter national competition law
- If art. 101 or 102 is used, obligation to notify the Commission
- The Commission is obliged to take over the case
Criterion
- Concept –> Exchanges of goods and services, establishing fx subsidiaries
- May affect –> is it possible to forsee that the agreement will affect on trade either negativley or possitively.
- Appreciable effect –> no clear cut, but the stronger market power the liklier the effect will be appreciable
Rules of presumption
- SME –> Normally no effect on trade
- NAAT-rule (not appreciably affecting trade) –> 1) combined market power under 5 % and 2) combined turnover under 40 mio
- Possitive presumption –> 1) turnover above 40 mio or 2) market share over 5 % + 3) the agreement by its very nature is capable og affecting trade (import/export or covers several MS)
Excluding potentiel competition
Determine whether there are real and concrete possibilities for a potentiel competitor to enter the market and competing with undertakings already present
- If so, excluding the potentiel competitor will infringe art. 101
Assessment must take regard to the structure of the market and the economic and legal context
- Purely hypthetical possibility will not be enough
- Consider whether the restriction of competition is due to the agreement or the context of the market
Restriction of Competition by Regulation
State compulsion
- Art. 101 does not apply if the anti competitive conduct is required by national legislation
Legal framework
- Art. 101 does not apply if the national legislation creates a legal framework which in itself eliminates any possibilities of competition
