Art 101

Art 101

Agreement between Undertakings
1. Object/Effect restricts competition?
  1. May effect on trade between MS?
    1. Ways of avoiding infringement
      1. NAOMI
        Threshold: HA = aggregate market share 10%; VA aggregate market share 15%
        NOT cover hardcore restrictions: price fixing and export bans
        Volk
      2. NAAT
        Aggregate market share under 5% AND HA = aggregate annual turnover €40 mill; VA Supplier’s annual turnover €40 mill
        Can exempt hardcore restrictions BUT national enforcement agencies may not
      3. Vertical Block Exemption (formerly Reg 330/2010)
        ONLY applies to Vertical Agreements: Defined by Art 1(1)(a) BE
        Art 3(1) BE: Supplier and Buyer’s share in their respective markets is under 30%
        Not cover restriction listed in Art 4 BE: price fixing and passive sales (Art 4(b))
        Art 5 BE: non-compete provisions of over 5 years are also excluded
      4. Art 103(3)
        Art101(3): No breach if ALL 4 requirements met
        Agreements must improve production or distribution of goods or the promotion of technical or economic progress
        Consumers must get a fair share of the resulting benefit
        Agreement imposes indispensible restrictions (they are necessary)
        Agreement does not allow for the substantial avoidance of competition
    2. ‘MAY’ = only need demonstrate potential effect
    3. Agreement outside EU which coordinate prices at which GOODS SOLD IN THE EU can be sufficient: Woodpulp
    4. Wholly internal = national competition law
    5. STM test: sufficient to prove likelihood trade would be affected directly/indirectly, actually or potentially
  2. Restriction Effect OR Object sufficient: Polypropylene
  3. Art 101(1) TFEU: list of anti competitive agreements
    1. Art 101(a): Price fixing e.g. AKZO
    2. Art 101(b) TFEU: Limiting markets
      1. 'Absolute Territorial Protection': Constan v Grundig
      2. BUT 'Exclusive Territory Agreements' allowed: STM v MU
      3. Vertical export bans
      4. Possibility of anti-competitive effect: STM v MU factors = (i) Nature and quantity (ii) Position and size of parties (iii) Isolated nature of agreement/position in series (iv) Severity of clauses (v) Opportunities allowed for other commercial competitors
2. NOT have to be formal agreement: Quinine Cartel
3. 'between undertakings' = 2 separate legal entities
4. Vertical Agreement: Constan v Grundig
5. Horizontal Agreement
6. Inc agreement, association decision and concerted practice
  1. Concerted practice: Dyestuffs - 'substituted practical co-operation for risks of competition'
    1. Parallel conduct: behaviour such as immeditately raising price after competitors will not be sufficient (Woodpulp: alt explanation)
      1. More likely to be innocent parallel conduct in Oligopoly: Dyestuffs: not Oligoply ∴ should have been competition

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