COMMERCIAL LAW & PRACTICE LEGAL PRACTICE COURSE
Appendix – Article 101 TFEU flowchart
Is there an agreement, decision or concerted practice? No
Yes
Is it between two or more undertakings?
No
Yes
Is it correct to say that it “may affect trade between
Member States”?
(See Commission’s “Effect on Trade Guidelines” – not
“capable of appreciably affecting trade” if:
Combined market share less than 5% and
If horizontal agreement, combined turnover < 40 million euros No
If vertical agreement, seller’s turnover < 40 million euros
Yes
Does the agreement have “as its object or effect, the
prevention, restriction or distortion of competition within
the internal market”? No
(See Commission guidelines, June 2014)
Yes
Does the agreement fall within NAOMI? No Problem
No ‘object’ infringements Under Art 101
No ‘hardcore’ infringements Yes TFEU
If horizontal agreement (or difficult to classify as horizontal or
vertical), combined market share no more than 10%
If vertical agreement, market share of each party no more than
15%
No
Does the agreement fall within VRBE or another block
exemption?
For VRBE:
vertical agreements only Yes
market share of supplier no more than 30%
market share of buyer no more than 30%
no ‘hardcore restrictions’ (see Article 4)
No
Does the agreement fall within Article 101(3) TFEU?
Contributes to improving production or distribution of goods or
promoting technical or economic progress Yes
Allows customers a fair share of benefit
Only imposes restrictions which are indispensable for these
objectives
Does not afford possibility of eliminating competition in respect
of a substantial part of products
No
Breach of Article 101
Agreement void
Potential fine (up to 10% worldwide turnover) etc (see LG07)
2019-lpc-comm-lg07-d1 © City, University of London 2020
Appendix – Article 101 TFEU flowchart
Is there an agreement, decision or concerted practice? No
Yes
Is it between two or more undertakings?
No
Yes
Is it correct to say that it “may affect trade between
Member States”?
(See Commission’s “Effect on Trade Guidelines” – not
“capable of appreciably affecting trade” if:
Combined market share less than 5% and
If horizontal agreement, combined turnover < 40 million euros No
If vertical agreement, seller’s turnover < 40 million euros
Yes
Does the agreement have “as its object or effect, the
prevention, restriction or distortion of competition within
the internal market”? No
(See Commission guidelines, June 2014)
Yes
Does the agreement fall within NAOMI? No Problem
No ‘object’ infringements Under Art 101
No ‘hardcore’ infringements Yes TFEU
If horizontal agreement (or difficult to classify as horizontal or
vertical), combined market share no more than 10%
If vertical agreement, market share of each party no more than
15%
No
Does the agreement fall within VRBE or another block
exemption?
For VRBE:
vertical agreements only Yes
market share of supplier no more than 30%
market share of buyer no more than 30%
no ‘hardcore restrictions’ (see Article 4)
No
Does the agreement fall within Article 101(3) TFEU?
Contributes to improving production or distribution of goods or
promoting technical or economic progress Yes
Allows customers a fair share of benefit
Only imposes restrictions which are indispensable for these
objectives
Does not afford possibility of eliminating competition in respect
of a substantial part of products
No
Breach of Article 101
Agreement void
Potential fine (up to 10% worldwide turnover) etc (see LG07)
2019-lpc-comm-lg07-d1 © City, University of London 2020
