Eu Ws8 Competition Law – Article 101 Tfeu

Front 1

Even informal agreements count as agreements for the purpose of TFEU 101

Back 1

ACF Chemiefarma v Commision (“Quinine Cartel”) (1970)

Front 2

1. TFEU 101 applies to horizontal and vertical agreements; no distinction where the treaty makes none and dim view of rebuilding barriers between member states.
2. It is the extent to which an agreement may affect trade between member states that decides whether EU competition law is an issue.
3. D had absolute territorial protection, with no possibility of parallel imports.

Back 2

Consten and Grundig v Commission (1966)

Front 3

Decisions by trade associations or professional bodies, whether legally binding or not, can be caught by the term “agreement”

Back 3

IAZ NV International Belgium v Commission (1983)

Front 4

Regulatory rules from professional bodies may potentially come under “agreements”, unless they are reasonable rules.

Back 4

Wouters v Algemene Raad (2002)

Front 5

"Concerted practices"

Back 5

ICI v Commission (1972) (Dyestuffs)

1. Definition of “concerted practices”:
Coordination between businesses which falls short of an informal agreement but knowingly substitutes practical cooperation for the risks of competition
2. Parallel pricing not automatic proof of concerted practice
3. It may be if it can be concluded from the market that the conditions are different to what you would expect
4. Dyestuffs market is not an oligopoly

Front 6

Held that the wood pulp market was an oligopoly and so evidence of parallel pricing could be explained by this

Back 6

Ahlstrohm v Commission (1972) (Woodpulp)

Front 7

Increasing trade is still affecting trade

Back 7

Woodpulp

Front 8

1. Either object or effect of restricting competition will be sufficient
2. Factors affecting “effect” - view in economic context
a. Nature and quantity of products concerned
b. Position and size of parties on the market
c. Isolated or part of network of similar agreements
d. Severity of the clauses
e. Opportunities for competitors via parallel re-exportation and importation

Back 8

Societe Technique Miniere v Maschinenbau Ulm (1966)

Front 9

Case where an agreement was deemed anti-competitive despite little evidence of negative effect

Back 9

Commission Decision – Polypropylene (1988)

Front 10

Dutch dairy producers agreed to buy raw materials from each other – held likely to affect trade between MS

Back 10

Cooperatieve Stremsel v Commission (1981)

Front 11

Where an individual agreement may not affect trade between MS, it must be considered in relation to a network of similar agreements (brewery and public house)

Back 11

Brasserie de Haecht (1967)

Front 12

Article 101(1) and (2) and 102 TFEU have direct effect

Back 12

BRT v SABAM (1974)

Front 13

In English law, anti-competitive clauses can only be severed if remainder still accurately reflects the original agreement reached by the parties

Back 13

Chemidus Waverin v TERI (1978)

Front 14

“de minimis” approach to minor agreements first developed in case re 1% of washing machines between Belgium and Luxembourg

Back 14

Volk v Vervaecke (1969)

Front 15

Notice on Agreements Of Minor Importance (NAOMI)

Back 15

(2001/C-368/07)

Front 16

Vertical agreement (see definition, different level + conditions of selling goods/services

Back 16

330/2010, 1(1)(a)

Front 17

100% reduction for whistleblower if:
- first to come forward
- did not coerce others into cartel
- full cooperation

Back 17

2006/C-298/11

Front 18

Some immunity for other cooperators:
- significant added value
- did not coerce others into cartel
- full cooperation

Back 18

Hoffman La Roche

Front 19

Example of UK courts applying TFEU 102 in direct effect is:

Back 19

Garden Cottage Foods v Milk Marketing Board (1983)

Front 20

101 TFEU

Back 20

Business agreements; may affect trade between MS; object or effect to prevent, restrict or distort competitionin the common market

Front 21

Definition of concerted practces

Back 21

Dyestuffs

Coordination between businesses which falls short of an informal agreement but knowingly substitutes practical cooperation for the risks of competition

Front 22

Defintion of "undertaking"

Back 22

OFT Guidelines 403

Undertaking covers all legal or natural person carrying on economic activities:
- companies
- partnerships
- sole traders
- non profit organisations
- public organisations carrying out commerce

Front 23

Hardcore restrictions in TFEU 101

Back 23

a. Price fixing between competitors
b. Limit or control production, markets, technical development or investment
c. Sharing out markets
d. Dissimilar conditions for similar transactions imposed on other parties
e. Make contracts subject to additional irrelevant conditions

Front 24

Factors for anti-competitive effect?

Back 24

STM case:

a. Nature and quantity of products concerned
b. Position and size of parties on the market
c. Isolated or part of network of similar agreements
d. Severity of the clauses
e. Opportunities for competitors via parallel re-exportation and importation

Front 25

STM test for affecting trade between member states:

Back 25

Societe Technique

Is it possible to foresee with a sufficient degree of probability that the agreement may have an influence, direct or indirect, actual or potential, on pattern of trade between member states?

Front 26

Consider potential as well as actual effect

Back 26

Consten and Grundig

Front 27

Consider in terms of effect of network of agreements

Back 27

Brasserie de Haecht

Front 28

Increasing trade is still affecting trade

Back 28

Consten and Grundig

Front 29

A17 Reg 1/2003

Back 29

Commission will keep watch over various sectors of the economy; Competition Directorate-General sub-divided to do this

Front 30

A18 Reg 1/2003

Back 30

Request firm or entire industry to provide all information necessary to the enquiry

Front 31

A18(2) Reg 1/2003

Back 31

Penalties can be imposed if incorrect or misleading

Front 32

A19 Reg 1/2003

Back 32

Interview any consenting person, whether or not employed by firm in question

Front 33

Reg 1/2003 20(2)

Back 33

Enter premises, land and transport, look at records in any medium, make copies and seal

Front 34

Reg 1/2003 20(3)

Back 34

Written authorisation

Front 35

Reg 1/2003 20(5)

Back 35

NCA official must help, and get 20(2) powers

Front 36

Reg 1/2003 20(6)

Back 36

Can get help from the police

Front 37

Reg 1/2003 20(7-8)

Back 37

If judge required, apply for it – can test proportionality but only ECJ test lawfulness

Front 38

Reg 1/2003 21(1)

Back 38

Can go for private homes of staff

Front 39

100% reduction for whistleblower if:

Back 39

2006/C-298/11

- first to come forward
- did not coerce others into cartel
- full cooperation

Front 40

Some immunity for other cooperators:
- significant added value
- did not coerce others into cartel
- full cooperation

Back 40

Hoffman La Roche

Front 41

Challenge competition - 263 TFEU

Back 41

General Court under 263 TFEU
- further appeal to ECJ on a point of law

Front 42

TFEU 101(3) criteria

Back 42

Agreement must:
a. Improve production/distribution of goods
OR promote technical/economic progress
b. Allow consumers a fair share of benefit
c. NOT impose restrictions on undertakings
that are not indispensable
d. NOT allow substantial elimination of

Front 43

(NAOMI)
(2001/C-368/07)

Back 43

a. Horizontal – combined share does not exceed 10%
of any market affected by A
b. Vertical – combined share does not exceed 15% of
any market affected by A
c. For networks of As, threshold is 5%
d. Does not imply agreements exceeding threshold are in breach
- NO hardcore items

Front 44

NAAT (non-appreciable affection of trade)

Back 44

Trade not appreciably affected if:
a. Aggregate share of parties < 5%
b. Horizontal – Aggregate turnover < €40m
c. Vertical – supplier turnover < €40m

EVEN if hardcore

Front 45

If it's either NAOMI or NAATS, it means that while it may be offensive, the breach is too small to breach EU law.

Back 45

Volk v Vervaecke

Front 46

330/2010, 1(1)(a)

Back 46

This is a vertical agreement (see definition, different level + conditions of selling goods/services

Front 47

330/2010, 3(1)

Back 47

Check market share threshold (30%), both buyer and seller on respective markets they buy/sell on

Front 48

330/2010, 4(a-b)

Back 48

Agreement does not contain any Article 4 nasties (price-fixing, passive sales)

Front 49

330/2010, 5

Back 49

Non-compete -
Careful with Article 5 – waives exemptions on offending elements but does not disapply to whole agreement