Competition Law: TFEU Articles 101 and 102 (Andrew)

The aim of competition law is to ensure a functioning internal market by promoting fair competition among businesses.

The European Commission enforces competition law through investigations, evaluations, and sanctions. They act as both the police and the judicial system in this area.

Article 101 of the TFEU deals with agreements, decisions, and practices that can distort competition within the EU.

A classic example of a prohibited agreement under Article 101 is when producers collude to raise prices, benefiting all parties at the expense of consumers.

Concertive practices involve companies coordinating their actions without formal agreements, leading to an unfair market.

An undertaking encompasses any entity engaged in an economic activity, regardless of its funding source.

The Single Economic Entity doctrine helps determine if a group of companies are truly independent or merely part of a larger controlling undertaking.

The state can also be considered an undertaking if it engages in economic activities. For example, a national railway company.

A company is not a separate undertaking if the parent entity owns 100% of its shares.

A company is not a separate undertaking if the parent entity has significant control over its operations, even without full ownership.

Actions of an undertaking can affect trade between EU member states through its influence, even if indirect or potential.

Exclusions from competition law, found mostly in case law, are justified by serving a higher purpose than just competition.

An agreement between companies that restricts competition, involving two or more parties.

An agreement between companies at different stages of the production or distribution chain. Example: a car producer and a car salesman.

An agreement between companies at the same stage of the production or distribution chain. Example: two car producers.

Agreements can be formal or informal, even implied by actions. Mere participation can make you liable.

An undertaking that shares information with competitors to reduce strategic uncertainty, even without an explicit agreement.

A group of companies makes a collective decision that influences market mechanisms, even if there's no formal agreement.

Parallell imports: selling products in different countries for different prices. Potential for collusion between producers and wholesalers.

The Italian insurance salesmen organization set minimum fixed prices, violating competition law.

The Spanish waste management association enforced standardized prices for waste management companies.

Bayer, by varying its medicine prices across countries, was suspected of collusion with Spanish wholesalers. This collusion could not be proven, however.

The UK sugar and confectionary market case involved companies exchanging information on market strategies and production volumes, triggering a competition law investigation.

Agreements between companies that are inherently anti-competitive, regardless of economic analysis. They involve harmful practices like price fixing, market sharing, or output limitation.

Agreements that don't inherently harm competition, but require economic analysis to assess their impact. Economists study the agreement's terms to see if they could distort competition.

The exemption for agreements that are too small to significantly affect competition. It applies if the combined market share of all parties is below certain thresholds.

A threshold for the de minimis exemption. In horizontal agreements (between competitors), the combined market share must be below 10%.

A threshold for the de minimis exemption. In vertical agreements (between companies at different stages of the supply chain), the market share of each party must be under 15% in a relevant market.

An exception to Art. 101 of the TFEU that allows certain agreements that restrict competition, under specific conditions, if they bring overall benefits.

One condition for the Art. 101.3 exemption. The agreement must lead to an overall improvement in production, distribution, or technical/economic progress.

One condition for the Art 101.3 exemption. Consumers must receive a fair share of the benefits resulting from the agreement.

One condition for the Art. 101.3 exemption. The agreement must not impose unnecessary restrictions that go beyond what is needed to achieve the desired benefits.

One condition for the Art 101.3 exemption. The agreement must not eliminate competition completely in a significant part of the market.

A simplified version of the Art. 101.3 exemption, applicable to specific sectors. They provide legal certainty for companies that want to enter agreements without prosecution, as long as they follow predefined rules.

In the context of block exemptions, 'hardcore restrictions' are specific practices that are prohibited and cannot be included in the agreement, even if the agreement complies with the exemption's general criteria. They are the 'no-go' areas.

A company that has a dominant position in the market, meaning it has enough power to operate independently of competitors and consumers. They can influence prices, output, and market conditions.

The ability to operate independently of your competitors and consumers, setting prices and conditions without significant resistance. It's a key indication of a dominant position.

Abusive actions taken by a company with a dominant market position. These actions can harm competition and restrict consumer choice. They often involve unfair pricing, market sharing, or hindering new market entrants.