Werkgroep 1
Relevant question of law: To what extent do
the price-fixing agreements and coordinated
practices between the airlines constitute an
infringement of Article 101 TFEU, in light of
relevant case law of the Court of Justice of the
European Union on cartels and collusion?
Exception = uitzondering
Excemption = vrijstelling/ ontheffing
Justification = rechtvaardiging
Introduction into Article 101 TFEU: One of
the important pillars of the European
competition law is Article 101 TFEU. This
provision prohibits anticompetitive
cooperation between undertakings, also known
as ‘cartels’; a form of illegal behaviour that has
been the most dangerous anticompetitive
practice.
Article 101 TFEU consists of three important
paragraphs:
The rule prohibiting anticompetitive
agreements – Article 101(1) TFEU;
The consequences of anticompetitive conduct – Article 101(2) TFEU;
The possibility for exemptions for conducts that fall under paragraph
1 –Article 101(3) TFEU.
Article 101 TFEU – Purpose:
Prohibits anti-competitive agreements, decisions, or concerted practices
(cartels) between undertakings that may restrict, prevent, or distort
competition in the internal market.
Article 101(2): Prohibited agreements, decisions, or practices are
automatically void (retroactive effect).
Article 101(1) – Conditions for prohibition explained:
1. Are the actors involved undertakings?
Definition undertakings: Must be engaged in economic activity,
regardless of legal status or financing; legal form irrelevant Höfner
and Elser case paragraph 20. Economic activity = (1) offering
, goods/services on a market and (2) capable, at least in principle, of
being carried out by a private operator for profit. Exceptions:
- Exercise of public powers – not economic (Eurocontrol case, C-
364/92: air navigation control is a public authority task).
- Solidarity-based / non-commercial activities – not economic (Poucet
and Pistre, C-159/91 & C-160/91: social security funds pursue social
objectives, not profit).
2. Is the conduct of the undertaking covered by Article 101(1)
TFEU?
This can take one of three forms: (i) agreements, (ii) concerted
practices, or (iii) decisions of associations of undertakings.
i. Agreements; Broadly defined as a “concurrence of wills”
between parties regarding their conduct on the market (Consten
& Grundig). Form is irrelevant: agreements may be written
contracts, oral understandings, or “gentleman’s agreements.”
- Horizontal agreements: between competitors at the same level (price-
fixing, market-sharing).
- Vertical agreements: between undertakings at different levels
(manufacturer–distributor restrictions).
Includes restrictions of inter-brand competition (between brands)
and intra-brand competition (between distributors of the same brand).
Special case: Apparently unilateral conduct (schijnbaar eenzijdig
gedrag) may qualify as an agreement if the other party tacitly accepts
it (Bayer, T-41/96). Tacit acquiescence (stilzwijgende instemming) can
be shown by actual compliance.
ii. Concerted Practices; Defined as a “catch-all” (verzamelterm)
for collusion falling short of an agreement. Undertakings must
independently determine their market behaviour. Adaptation to
competitors is allowed, but direct or indirect contacts that reduce
uncertainty about conduct (die onzekerheid over gedrag
verminderen) (prices, output, timing) are prohibited. Parallel
conduct is not in itself unlawful but may amount to strong
evidence of collusion if it creates market conditions inconsistent
with normal competition (Dyestuffs case, ICI v Commission). The
key test: was there contact between undertakings leading to
coordination, or was behaviour simply a rational response to
market forces?
iii. Decisions of Associations of Undertakings; Associations
(trade bodies, professional organisations) can adopt decisions
binding their members, which fall under Article 101(1). Even non-
binding recommendations may infringe if they guide members’
behaviour. Example: Wouters (C-309/99) – Dutch Bar
Association’s (nederlandse orde van advocaten) prohibition on
structural cooperation between lawyers and accountants was
treated as a decision of an association.
3. Is the undertaking’s conduct collusive?
Relevant question of law: To what extent do
the price-fixing agreements and coordinated
practices between the airlines constitute an
infringement of Article 101 TFEU, in light of
relevant case law of the Court of Justice of the
European Union on cartels and collusion?
Exception = uitzondering
Excemption = vrijstelling/ ontheffing
Justification = rechtvaardiging
Introduction into Article 101 TFEU: One of
the important pillars of the European
competition law is Article 101 TFEU. This
provision prohibits anticompetitive
cooperation between undertakings, also known
as ‘cartels’; a form of illegal behaviour that has
been the most dangerous anticompetitive
practice.
Article 101 TFEU consists of three important
paragraphs:
The rule prohibiting anticompetitive
agreements – Article 101(1) TFEU;
The consequences of anticompetitive conduct – Article 101(2) TFEU;
The possibility for exemptions for conducts that fall under paragraph
1 –Article 101(3) TFEU.
Article 101 TFEU – Purpose:
Prohibits anti-competitive agreements, decisions, or concerted practices
(cartels) between undertakings that may restrict, prevent, or distort
competition in the internal market.
Article 101(2): Prohibited agreements, decisions, or practices are
automatically void (retroactive effect).
Article 101(1) – Conditions for prohibition explained:
1. Are the actors involved undertakings?
Definition undertakings: Must be engaged in economic activity,
regardless of legal status or financing; legal form irrelevant Höfner
and Elser case paragraph 20. Economic activity = (1) offering
, goods/services on a market and (2) capable, at least in principle, of
being carried out by a private operator for profit. Exceptions:
- Exercise of public powers – not economic (Eurocontrol case, C-
364/92: air navigation control is a public authority task).
- Solidarity-based / non-commercial activities – not economic (Poucet
and Pistre, C-159/91 & C-160/91: social security funds pursue social
objectives, not profit).
2. Is the conduct of the undertaking covered by Article 101(1)
TFEU?
This can take one of three forms: (i) agreements, (ii) concerted
practices, or (iii) decisions of associations of undertakings.
i. Agreements; Broadly defined as a “concurrence of wills”
between parties regarding their conduct on the market (Consten
& Grundig). Form is irrelevant: agreements may be written
contracts, oral understandings, or “gentleman’s agreements.”
- Horizontal agreements: between competitors at the same level (price-
fixing, market-sharing).
- Vertical agreements: between undertakings at different levels
(manufacturer–distributor restrictions).
Includes restrictions of inter-brand competition (between brands)
and intra-brand competition (between distributors of the same brand).
Special case: Apparently unilateral conduct (schijnbaar eenzijdig
gedrag) may qualify as an agreement if the other party tacitly accepts
it (Bayer, T-41/96). Tacit acquiescence (stilzwijgende instemming) can
be shown by actual compliance.
ii. Concerted Practices; Defined as a “catch-all” (verzamelterm)
for collusion falling short of an agreement. Undertakings must
independently determine their market behaviour. Adaptation to
competitors is allowed, but direct or indirect contacts that reduce
uncertainty about conduct (die onzekerheid over gedrag
verminderen) (prices, output, timing) are prohibited. Parallel
conduct is not in itself unlawful but may amount to strong
evidence of collusion if it creates market conditions inconsistent
with normal competition (Dyestuffs case, ICI v Commission). The
key test: was there contact between undertakings leading to
coordination, or was behaviour simply a rational response to
market forces?
iii. Decisions of Associations of Undertakings; Associations
(trade bodies, professional organisations) can adopt decisions
binding their members, which fall under Article 101(1). Even non-
binding recommendations may infringe if they guide members’
behaviour. Example: Wouters (C-309/99) – Dutch Bar
Association’s (nederlandse orde van advocaten) prohibition on
structural cooperation between lawyers and accountants was
treated as a decision of an association.
3. Is the undertaking’s conduct collusive?
