Art 101

Art 101

1. Agreement between Undertakings

   • Object/Effect restricts competition?
     • May effect on trade between MS?
       • Ways of avoiding infringement
         • NAOMI
           • Threshold: HA = aggregate market share 10%; VA aggregate market share 15%
           • NOT cover hardcore restrictions: price fixing and export bans
           • Volk
         • 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
         • 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
         • 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
       • ‘MAY’ = only need demonstrate potential effect
       • Agreement outside EU which coordinate prices at which GOODS SOLD IN THE EU can be sufficient: Woodpulp
       • Wholly internal = national competition law
       • STM test: sufficient to prove likelihood trade would be affected directly/indirectly, actually or potentially
     • Restriction Effect OR Object sufficient: Polypropylene
     • Art 101(1) TFEU: list of anti competitive agreements
       • Art 101(a): Price fixing e.g. AKZO
       • Art 101(b) TFEU: Limiting markets
         • 'Absolute Territorial Protection': Constan v Grundig
         • BUT 'Exclusive Territory Agreements' allowed: STM v MU
         • Vertical export bans
         • 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
   • NOT have to be formal agreement: Quinine Cartel
   • 'between undertakings' = 2 separate legal entities
   • Vertical Agreement: Constan v Grundig
   • Horizontal Agreement
   • Inc agreement, association decision and concerted practice
     • Concerted practice: Dyestuffs - 'substituted practical co-operation for risks of competition'
       • Parallel conduct: behaviour such as immeditately raising price after competitors will not be sufficient (Woodpulp: alt explanation)
         • More likely to be innocent parallel conduct in Oligopoly: Dyestuffs: not Oligoply ∴ should have been competition