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

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

Back 9

Cooperatieve Stremsel v Commission (1981)

Front 10

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 10

Brasserie de Haecht (1967)

Front 11

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

Back 11

BRT v SABAM (1974)

Front 12

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

Back 12

Chemidus Waverin v TERI (1978)

Front 13

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

Back 13

330/2010, 1(1)(a)

Front 14

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

Back 14

2006/C-298/11

Front 15

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

Back 15

Hoffman La Roche

Front 16

101 TFEU

Back 16

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

Front 17

Definition of concerted practces

Back 17

Dyestuffs

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

Front 18

Defintion of "undertaking"

Back 18

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 19

Hardcore restrictions in TFEU 101

Back 19

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 20

Factors for anti-competitive effect?

Back 20

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 21

STM test for affecting trade between member states:

Back 21

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 22

Consider potential as well as actual effect

Back 22

Consten and Grundig

Front 23

Consider in terms of effect of network of agreements

Back 23

Brasserie de Haecht

Front 24

Increasing trade is still affecting trade

Back 24

Consten and Grundig

Front 25

100% reduction for whistleblower if:

Back 25

2006/C-298/11

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

Front 26

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

Back 26

Hoffman La Roche

Front 27

TFEU 101(3) criteria

Back 27

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 28

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

Back 28

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 29

NAAT (non-appreciable affection of trade)

Back 29

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 30

330/2010, 1(1)(a)

Back 30

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

Front 31

330/2010, 3(1)

Back 31

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

Front 32

330/2010, 4(a-b)

Back 32

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

Front 33

330/2010, 5

Back 33

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