Intro to Competition Law Anticompetitive Agreements PDF

COMPETITION LAW I Introduction to Competition Law Anticompetitive agreements (1) Dr. Orsolya Tokaji-Nagy 16 October 2024  ‘Competition is responsible for much of the prosperity around us. → Competition benefits consumers but is challenging to produ...

COMPETITION LAW I Introduction to Competition Law Anticompetitive agreements (1) Dr. Orsolya Tokaji-Nagy 16 October 2024  ‘Competition is responsible for much of the prosperity around us. → Competition benefits consumers but is challenging to producers and sellers (need to constantly improve to stay in business) → Sellers may sometimes look for ways to dampen the competitive process. Competition laws are designed to address these risks and safeguard consumer welfare. Competition enforcers have the task of unravelling price-fixing cartels, challenging powerful companies that abuse their power, and monitoring proposed merger transactions that could undermine effective competition. In doing so, competition enforcers have to carefully consider the level of intervention and ensure they do not distort the natural dynamics of competition. ' (Ariel Ezrachi) Introduction to Competition Law and Anticompetitive Agreements (1) 2 Overview & Objectives of lecture By the end of this lecture, we will have covered… 1. What is competition? What is competition law and its basic concepts? 2. What is EU competition law? 3. Anticompetitive Agreements (1): Art. 101 TFEU (1) – 3.1. The Treaty Text and the Scheme 3.2. The Interpretation and Application of Art.101TFEU – Requirements to satisfy for a conduct to violate Art. 101TFEU Concept of ‘undertaking’ in EU competition law Agreements, decisions and concerted practices Restrictions by object or effect Effect on trade between Member States Introduction to Competition Law and Anticompetitive Agreements (1) 1.1. Introduction: Foundations and context The evolution of modern competition law Roots of modern competition law: North America Revolutions in communication and transport after US civil war → Linked markets that were formerly separate → Promoted development of larger enterprises →Permitted business ops from multiple locations Business enterprises of unprecedented size & scope Introduction to Competition Law and Anticompetitive Agreements (1) 4 1.1. Introduction: Foundations and context The evolution of modern competition law Transformative changes in late 19th century US Emergence of large enterprises – trusts- displacing smaller firms - cost reductions - price cuts passed on to consumers Small businesses pressured Trusts: huge economic & political power Social structure: loss of control in communities (HQs) A 1904 political cartoon depicting the monopoly Standard Oil. Introduction to Competition Law and Anticompetitive Agreements (1)  How do these developments in the 19th century anticipate what we are seeing today? 1.1. Introduction: Foundations and context The evolution of modern competition law Sherman Act (1890) → Basic change of legislative framework → Goal: enhance rivalry → Ensure small businesses have opportunity to compete → Unreasonable restraint of trade outlawed → Gave federal gvt power to investigate trusts + companies suspected of violating the act Introduction to Competition Law and Anticompetitive Agreements (1) Political cartoon by Puck 7 1.1. Introduction: Foundations and context The evolution of modern competition law 1950-1975 Basic foundations Faith in free market economy shaken – Great Depression of competition law set: Recovered and was organizing principle of western economies – after WW2 spread in Europe (Rome Treaty) and globally Fall of SU: triumph of free market capitalism over central planning 2007 – financial crisis → loss of faith in markets? Austerity measures – disenchantment with globalization Growing inequalities of wealth, populism + protectionism Source: ICN Training: Origins and Aims of Competition Policy (2014) Current challenges: tech titans & digital economy Introduction to Competition Law and Anticompetitive Agreements (1) 8 1.1. Introduction: Foundations and context The goals of competition law Objectives and history of competition law vary among jurisdictions Common aims of competition law 1. Improve economic performance Promote growth Increase productivity Stimulate innovation 2. Support fair distribution of wealth Reduce poverty Historically disadvantaged classes 3. Protect the integrity of the political process 4. Secure positions of small- and medium sized enterprises (SMEs) Introduction to Competition Law and Anticompetitive Agreements (1) 9 1.1. Introduction: Foundations and context Practicing competition law - Global career opportunities - Global vocabulary & principles; general interconnectedness Introduction to Competition Law and Anticompetitive Agreements (1) Introduction to Competition Law and Anticompetitive Agreements (1) 11 1.2. Introduction: Key principles Basic economic principles of competition - The power of competition Perfect Oligopoly Monopoly Competition Customers and suppliers Imperfect competition A single firm dominates and completely informed + rational offers a product/service → no Few competitors competition Market simple, easy to enter, products homogenous Limited competition – tacit Can increase price, lower collusion? quality as no one can enter the Invisible hand competition in market (high BoE) full force → consumers are kings + societal welfare Consumers locked in Introduction to Competition Law and Anticompetitive Agreements (1) 12  1.2. Introduction: Key principles Market power …but what do we mean by market power? “price” – portmanteau expression that includes reduction of output, quality, innovation, etc.. degradation of standards Market power: The ability of a firm to profitably sustain its price above the competitive level without losing its market share But it does not exist in the abstract – but in relation to a market 13 1.2. Introduction: Key principles Definition of relevant market in the EU goes Elements for determining the relevant market back to Continental Can (Case 6-72) judgment THE RELEVANT MARKET Commission Notice on the definition of the relevant market (1997) Product market Defined in terms of substitutability Geographic market Test: to what extent can the allegedly anti-competitive undertaking’s product be substituted by the consumers and/or suppliers Temporal A clearly defined geographic area: market - In which relevant products are marketed Cross-elasticity of demand Cross-elasticity of supply -Where conditions of competition are sufficiently → Products that are viewed as substitutes by Ability of suppliers to switch production to relevant homogenous reason of products’ characteristics, their prices and products and market them in the short term without intended use: SSNIP Test incurring significant extra costs or risks in response - Can be distinguished from neighboring areas to small and permanent changes in relative prices because conditions of competition are appreciably different in those areas Introduction to Competition Law and Anticompetitive Agreements (1) Source: Tobler, Beglinger, Geursen (2011): Essential EU Competition Law in Charts, Budapest, HVG-ORAC 14 1.2. Introduction: Key principles Market share Defining relevant market = means to an end: → Allows us to assign market shares to companies that produce goods/services within relevant market → identify the most immediate competitive constraints But does this tell us everything about market power? Companies outside the relevant market (barriers to entry)? – we cannot determine market power of those not in the market Is there buyer power that can credibly shift between products of A-B-C? Introduction to Competition Law and Anticompetitive Agreements (1) 15 1.2. Introduction: Key principles The role of competition law What harms may occur if firms have market power? ❖ Joint market power after anticompetitive agreement ❖ Single dominant/monopolist firm ❖ Mergers of 2 or more firms Introduction to Competition Law and Anticompetitive Agreements (1) 1. Introduction Summary - Competition law – promote rivalry between businesses - Historic context: the importance of curbing large enterprises (trusts) - antitrust law - Market power: The ability to behave independently from competitors to an appreciable extent. - The harms that might occur if market power is concentrated, ie. What is competition law concerned with? Joint market power after agreement that harms competition Single dominant/monopolist firm that harms competition Mergers of 2 or more firms that harm competition - But market power needs to be assessed in the framework of markets - what is the relevant market? - Product market (interchangeable products) - Geographic market (homogenous conditions) - Temporal market (if applicable) - Indications of market power: market share, barriers to entry, buying power Introduction to Competition Law and Anticompetitive Agreements (1) 17 2. EU competition law – overview (1) Starting point: free market economy & free competition as EU’s economic credo (Art. 119TFEU) Aim of EU competition law: no distortion of competition in internal market IM includes a system ensuring competition is not distorted (Protocol No. 27) Designed to protect immediate interests of competitors and consumers PLUS the structure of the market competition as such (T-Mobil (2009)) Functional link with free movement For EU competition law to apply, the conduct must have appreciable impact on trade between MSs (‘the intra-state’ or ‘internal market’ element) Parallel enforcement of EU competition law: EC + NCAs The IM element determines whether EU competition law applies (Consten and Grundig (1966), Belasco (1989)) Introduction to Competition Law and Anticompetitive Agreements (1) 18 2. EU competition law – overview (2) Introduction to Competition Law and Anticompetitive Agreements (1) 19 3. Art. 101 TFEU: Anticompetitive Agreements A common form of anti-competitive agreements: cartels Introduction to Competition Law and Anticompetitive Agreements (1) 20  CARTEL: a group of independent companies which join together to fix prices, to limit production or to share markets or customers between them. Can also collude on product quality or innovation. Instead of competing with each other, cartel members rely on one agreed course of action → reduces incentives to provide new/better products/services at competitive prices or conditions. Article 101 TFEU prohibits anti-competitive agreements between two or more independent market operators. Cartels are illegal → highly secretive and evidence of their existence is not easy to find. The leniency program encourages companies to hand over inside evidence of cartels to the European Commission in exchange of immunity for fines or substantial reduction of fines. Settlements are also possible for 10% fine reduction. Introduction to Competition Law and Anticompetitive Agreements (1) 21 3. Art. 101 TFEU: Anticompetitive Agreements The Scheme THE LOGIC OF ART. 101 TFEU Art. 101(1) – PROHIBITION → Undertakings’ → collusive or joint conduct → distortion of competition → appreciably effect trade between MS → burden of proof: COMM or whoever alleges infringement Art. 101(2) – CONSEQUENCE → Nullity + public and private enforcement Art. 101(3) – LEGAL EXCEPTIONS → individual exceptions: burden of proof shifts to undertaking Introduction to Competition Law and Anticompetitive Agreements (1) 22 3. Art. 101 TFEU: Anticompetitive Agreements Article 101 (ex Article 81 TEC) 1. 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 or 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. Introduction to Competition Law and Anticompetitive Agreements (1) 23 3. Art. 101 TFEU: Anticompetitive Agreements Art. 101(1) TFEU – The elements 3.A. Undertakings + Associations of Undertakings 3. B. Agreements/ Decisions of Associations of Undertakings/ Concerted practices 3. C. Anti-competitive object or effect 3. D. Effect on trade Introduction to Competition Law and Anticompetitive Agreements (1) 24 3. Art. 101 TFEU: Anticompetitive Agreements 3.A. ‘Undertaking’ & ‘Association of Undertakings’ The TFEU does NOT define the term ‘Undertaking’ → settled case law ‘The categories of actors to which competition rules apply’ (Case C-67/69, Albany [para. 206]) - ‘encompasses every entity engaged in an economic activity, regardless of the legal status of the entity and the way in which it is financed’ (Case C-41/90 Höfner [para. 21]) - Joined cases C-180/98 to C-184/98 – Pavlov added to the definition of the concept of undertakings by including any activity consisting in the offering of goods or services on a given market. [para. 75] → Every Entity Engaged in an Economic Activity = Undertaking Introduction to Competition Law and Anticompetitive Agreements (1) 25 3. Art. 101 TFEU: Anticompetitive Agreements 3.A. ‘Undertaking’ & ‘Association of Undertakings’ ‘the Treaty rules on competition do not apply to activity which, by its nature, its aim and the rules to which it is subject does not belong to the sphere of economic activity … or which is connected with the exercise of the powers of a public authority…’ (J.C.J. Wouters and Others v. Algemene Raad van de Nederlandse Orde van Advocaten, Case C-309/99, [para. 57]). (emphasis added) Introduction to Competition Law and Anticompetitive Agreements (1) 26 3. Art. 101 TFEU: Anticompetitive Agreements 3.A. ‘Undertaking’ & ‘Association of Undertakings’ The Legal Status or Form of Entity is Immaterial: Functional approach: The notion of undertaking focuses on the nature of the activity carried out → Legal personality of the entity is not decisive May encompass: natural persons, legal persons, state or public bodies (even if they don’t have an independent legal personality but are part of State’s general administration), companies, partnerships, TAs, collecting societies, etc. Introduction to Competition Law and Anticompetitive Agreements (1) 27 3. Art. 101 TFEU: Anticompetitive Agreements 3.A. ‘Undertaking’ & ‘Association of Undertakings’ Association of Undertakings: → Bodies formed of same general types of undertakings to protect/defend their interests vis-a-vis other economic operators, government and the general public. (C-309/99, Leger AG [para. 62]) → Do NOT have to engage in economic activity to fall under Art. 101(1) TFEU The concept seeks to prevent undertakings from being able to evade rules on competition on account simply of the form in which they coordinate their conduct on the market. (C-309/99, Leger AG [para. 61]) E.g.: Sports associations (Piau, T-193/02) Association of cognac manufacturers (BNIC, C-123/83) Association of pharmacists (ONP and others, T-90/11) Source: The Economist Tradetoassociations Introduction Competition Law(Case and Anticompetitive – Pabst (1) IV/28.980Agreements Richars/BNIA) 28 3. Art. 101 TFEU: Anticompetitive Agreements 3.A. Summary - ‘Undertaking’ & ‘Association of Undertakings’ Undertaking: Functional approach: entity engaged in an economic activity, regardless of the legal status of the entity and the way in which it is financed’ (Case C-41/90 Höfner) If activity is carried out on commercial basis- undertaking Activity a core function of state/solidarity – not economic activity → NOT undertaking The fact that a body does not operate for profit is relevant but not decisive Association of undertakings: legitimate interest representative function; do not have to carry out economic activity for its decisions to fall under Art. 101(1) TFEU Introduction to Competition Law and Anticompetitive Agreements (1) 29 3. Art. 101 TFEU: Anticompetitive Agreements 3. B. Agreements/ Decisions/ Concerted practices Any form of collusion is prohibited between independent undertakings that leads to the distortion/restriction of competition Art. 101 TFEU lists 3 types of prohibited collusion, but these categories may often overlap Introduction to Competition Law and Anticompetitive Agreements (1) 30 3. Art. 101 TFEU: Anticompetitive Agreements 3. B. Agreements The concept of an agreement ‘centers around the existence of a concurrence of wills between at least two parties, the form in which it is manifested being unimportant so long as it constitutes the faithful expression of the parties' intention (Bayer AG v Commission Case T-41/96, [para. 67-68]) → Not necessarily legally binding → Very broad concept covering bi- and multilateral restriction of competition → Examples: → Legally binding and enforceable contracts (intended to be binding - although they are automatically void under Art.101(2) TFEU) → Expired contracts (EMI, Case 51/75) → Gentlemen’s agreements (Commission Decision Case COMP/33.133-B-Soda-ash) → Exchange of email correspondence (CD-Contact Data v Commission, Case T-18/03) → Participation in meetings if participant doesn’t publicly distance itself from the agreement. (Commission v Anic, Case C-49/92 P) Introduction to Competition Law and Anticompetitive Agreements (1) 31 3. Art. 101 TFEU: Anticompetitive Agreements 3. B. Decisions of associations of undertakings AUs are legitimate perform many functions, many beneficial to consumers – but may also facilitate collusion ‘Decision’: any measure taken by an association that reflects AU’s desire to coordinate members actions with its statutes (Bellamy and Child (2008) p. 138) Act of an association does not have to be legally binding, sufficient if members comply Following measures covered by Art. 101(1) TFEU Articles of association (Commission Decision Case IV/27.958) Decisions binding upon members (NV IAZ, Joined Cases 96/82 to 102/82, 104/82, 105/82, 108/82, 110/82) Non-binding recommendations (Verband der Sachversicherer v Commission, Case 45/85) Codes of conduct (Institute of Professional Representatives before the European Patent Office v Commission, Case T-144/99) Introduction to Competition Law and Anticompetitive Agreements (1) 32 3. Art. 101 TFEU: Anticompetitive Agreements 3. B. Concerted practices Art. 101(1) TFEU prohibits any form of collusion between independent undertakings – concept of ‘concerted practice’ designed to catch some less intense forms of cooperation than agreements and decisions by AUs Main purpose: to preclude coordination between undertakings which, without having reached the having been taken to the stage where an agreement properly so-called has been concluded, practical cooperation between them is knowingly substituted for the risks of competition” (Dyestuff, Case 48/69) Introduction to Competition Law and Anticompetitive Agreements (1) 33 3. Art. 101 TFEU: Anticompetitive Agreements 3. B. Concerted practices Exchange of information, which, if it concerns individualized commercially Legal Test sensitive information, leads to a rebuttable presumption of a concerted 1. Mental consensus practice; (Anic Case C-49/92 (1999)). 2. Contact between undertakings 3. Substitution of competition by cooperation 4. Causal link between 1 and 3 Introduction to Competition Law and Anticompetitive Agreements (1) 34 3. Art. 101 TFEU: Anticompetitive Agreements 3.B. Summary - Agreements, Decisions, Concerted Practices Art. 101(1) TFEU lists 3 forms of prohibited collusion – can be difficult to delineate Collusive behavior of any kind prohibited: Agreements: -broad range of practices -not restricted to a particular type of deal -Does not have to be written or legally binding AU decision: members may not coordinate their market behaviour through decisions Concerted practices -Less intense forms of cooperation -Must include: mental consensus, contact, the substitution of competition by cooperation and a causal link between mental consensus and concerted practice Introduction to Competition Law and Anticompetitive Agreements (1) 35 3. Art. 101 TFEU: Anticompetitive Agreements 3.C. The object or effect of preventing, restricting or distorting competition “which have as their object or effect the prevention, restriction or distortion of competition within the internal market” Some preliminary comments: Prohibition of Art. 101(1) applies to ALL types of agreements regardless of their structure or the number of the parties to the agreement (horizontal + vertical) For the purposes of Art.101(1) the relevant market needs to be defined to assess the infringement and its effect on trade between the MSs The restrictive nature of the agreement must be adequately demonstrated by EC or NCA (legal+economic conditions that might influence market conduct of parties) 36 3. Art. 101 TFEU: Anticompetitive Agreements 3.C. The object or effect of preventing, restricting or distorting competition Alternative requirements – object OR effect "These are not cumulative but alternative requirements, indicated by the conjunction 'or’ (Société technique minière, Case 56/65 [para. 249]) → It is necessary to establish the object of an agreement or concerted practice → Effects only scrutinized when it is NOT clear that object is to restrict competition in the IM Introduction to Competition Law and Anticompetitive Agreements (1) 37 3. Art. 101 TFEU: Anticompetitive Agreements 3.C. The object or effect of preventing, restricting or distorting competition Restriction by Object → Has to be assessed by looking at objective aims: content, objectives, economic and legal context. → Agreement has the object of distorting competition if the actions taken at least potentially impedes trade between MSs either for economic reasons or because they hinder integration of IM → Parties’ subjective intention irrelevant (T-Mobile, Case C-8/08; Bailey(2012) [para. 578]) → Covers classical infringements –hardcore restrictions- that are restrictive by their nature: → Horizontal price fixing → Partitioning of markets → Exclusive purchasing agreements Introduction to Competition Law and Anticompetitive Agreements (1) 38 3. Art. 101 TFEU: Anticompetitive Agreements 3.C. The object or effect of preventing, restricting or distorting competition Restriction by Effect Where the object of an agreement cannot be found to restrict competition, an analysis of its effect becomes crucial: a) Extensive market analysis Definition of market: relevant geographic- & product market (Delimitis, C-234/89)) → agreement/practice to be considered in its actual market context Limitation of access to market - Including possible limitation + foreclosure effects of agreements entered into b) Analysis of the counterfactual situation For a complete analysis current factual situation is compared to the hypothetical situation which would persist, had the agreement not been concluded. (Société technique manière, Case 56/65 ) Introduction to Competition Law and Anticompetitive Agreements (1) 39 3. Art. 101 TFEU: Anticompetitive Agreements 3.C. The object or effect of preventing, restricting or distorting competition Restriction by Effect (2) c) Relevant material factors Nature and quantity of products, the nature of the agreement (isolated or series), severity of clauses that protect the exclusive dealership, opportunities allowed for other competitors (Société technique manière, Case 56/65 ) d) Effects on actual or potential competitors Art. 101(1)TFEU may also apply when an agreement threatens the penetration of a market by a potential future competitor, based on an ‘economically realistic approach’ (European Night Services, Joined Cases T-374/94, T-375/94, T-384/94, T-388/94) Introduction to Competition Law and Anticompetitive Agreements (1) 40 3. Art. 101 TFEU: Anticompetitive Agreements 3.C. Summary - The object or effect of preventing, restricting or distorting competition Art. 101(1) TFEU only applies if conduct has its object or effect the restriction of competition: - Restriction by object OR effect – alternative requirements - By object: - to be analyzed by looking at objective aims of agreement/concerted practice - Restrictive by object if it at least has the potential to impede trade between MSs for economic reasons or by hindering integration - Restrictive by object per se: hardcore restrictions - If no restriction by object: analysis of restriction by effect: the object cannot be found to be restrictive – thorough analysis of effects on competition factual + hypothetical restrictive effects on actual or potential competitors Introduction to Competition Law and Anticompetitive Agreements (1) 41 3. Art. 101 TFEU: Anticompetitive Agreements 3.D. Effect on trade between Member States The Concept of ‘trade’ ‘Trade between MSs’ – not limited to traditional exchange of goods and services, it is a wider concept, covering all cross-border economic activity (Commission Guidelines on the effect of trade concept, OJ No. C 101 of 27 April 2004, para. 19.) BUT Pure national agreements can also fall under Art. 101 (1) TFEU National cartels can prevent foreign companies from entering the national markets to provide competition to the members of the cartel (Vereeniging van Cementhandelaren v Commission, Case 8/72) Introduction to Competition Law and Anticompetitive Agreements (1) 42 3. Art. 101 TFEU: Anticompetitive Agreements 3.D. Effect on trade between Member States ‘Effect trade’ Trade between MSs is or may be affected when 3 criteria are met: ‘it must be possible to foresee with a sufficient degree of probability on the basis of a set of objective factors of law or of fact that the agreement in question may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States’ (Société technique manière, Case 56/65) (extensive interpretation) ↓ Proof of the agreement’s actual impact on trade: not necessary capable of having that effect: sufficient Introduction to Competition Law and Anticompetitive Agreements (1) 43 3. Art. 101 TFEU: Anticompetitive Agreements 3.D. Effect on trade between Member States Concept of appreciability The trade pattern between MSs must be affected in an appreciable way → they should have a minimum level of cross-border affects Presumption of non-affectation – in principle agreements are not capable of appreciably affecting trade between Member States when the following cumulative conditions are met: - Aggregate mkt share less than 5% AND - Aggregate turnover less than 40M € Commission, Guidelines on Effect on Trade Concept contained in Articles 81 and 82 of the treaty OJ C101/81 para. 52 Introduction to Competition Law and Anticompetitive Agreements (1) 44 3. Art. 101 TFEU: Anticompetitive Agreements 3.D. Summary - Effect on trade between Member States Art. 101(1) TFEU applies only to agreements, decisions or practices which may affect trade between MSs. Inter-Member State clause defines the scope of application of Art. 101TFEU and plays a central role in determining whether EU or national competition law applies! (also see Art. 3 Reg. 1/2003!) Clause is interpreted broadly covering all types of cross-border practices having a detrimental effect on competition on the IM. The effect needs to be appreciable to cause EU competition law to apply. Introduction to Competition Law and Anticompetitive Agreements (1) 45 4. The De Minimis Doctrine The concept of the de minimis doctrine Provides a safe harbor for minor agreements between businesses which the Commission considers to have no appreciable effects on competition. This safe harbor applies on condition that: 1. the market shares of the undertakings concluding those agreements do not exceed 1. 10% for agreements between competitors or 2. 15% for agreements between non-competitors; and 2. the agreements do not have as their object to restrict competition. Introduction to Competition Law and Anticompetitive Agreements (1) 46 4. The De Minimis Doctrine Hardcore restrictions do not benefit The Commission’s De Minimis Notice contains a list of ‘hardcore restrictions’ which are not encompassed by the ‘safe harbor’ benefit. The most important ‘hardcore restrictions’ are - agreements on price fixing, - market sharing, - resale price maintenance, - export restrictions. 47 4. The De Minimis Doctrine De Minimis Doctrine vs. Presumption of non- affectation Presumption of non-affectation applies to ANY restriction (by object and by effect) De minimis rules applies only to restrictions by effect, as restrictions by object are ALWAYS deemed appreciable 48 4. The De Minimis Doctrine Summary -Restrictions of competition covered by Art.101(1)TFEU IF they have an appreciable anticompetitive effect. Unlike the presumption of non-affectation, the de minimis doctrine applies to restrictions by effect. -A number of particularly severe restrictions (per se restrictions) are always considered to have an appreciable effect. -For other restrictions, quantitative thresholds apply. Introduction to Competition Law and Anticompetitive Agreements (1) 49 RECAP OF LECTURE - What is competition and competition law? - What is market power and the context in which we examine market power? What are competitive harms? - Anticompetitive agreements and the prohibition in Art.101(1)TFEU: - What is an undertaking? - What is an agreement and related practices (decisions, concerted practices)? - When/Why are these practices prohibited? → Object or effect on competition in internal market → Affectation of trade between EU Member States - What is the De Minimis Doctrine? REFERENCES Ariel Ezrachi - EU Competition Law, An Analytical Guide to the Leading Cases, Hart Publishing, (7th ed, 2021) Ariel Ezrachi - Competition and Antitrust Law – VSI, OUP (2021) Alison Jones, Brenda Sufrin, Niamh Dunne (2019): EU Competition Law - Text, Cases, and Materials, OUP, 7th edition Moriz Lorenz (2013): An Introduction to EU Competition Law, CUP, 1st edition Tobler Christa, Beglinger Jacques, Geursen Wessel (2011): Essential EU Competition Law in Charts, Budapest: HVG-ORAC ICN Training on Demand