Case law: Is the conduct prohibited by Article 101 TFEU?
1 Article 101(1) TFEU
• Is it an undertaking?
• Höfner and Elser
° Any single economic entity (natural persons, liberal professions and a State or a
state entity) and regardless the way in which it is financed
° Engaged in an economic activity (are goods or services offered on the market which is
not exercising public law authority, meaning an activity which necessarily has to be
provided by the State). A final consumer will never constitute an undertaking
• Is the conduct covered by Article 101(1) TFEU?
• An agreement is a concurrence of wills and can either be formal (contract) or informal.
Informal agreements imply that so long as there is a concurrence of wills, constituting the
faithful expression of parties’ intention, its form is unimportant (‘gentlemen’s agreement’)
° Consten and Grundig: agreements can either be horizontal (when the undertakings
concerned operate at the same level of the supply chain) or vertical. Vertical
agreements however are considered to be less harmful as a result of inter-brand and
intra-brand competition. Inter-brand competition is competition between producers of
different brands. Intra-brand competition is the competition between distributors of
the same brand
° Bayer: agreements may be hidden as an apparently unilateral behaviour. Or;
• Decision of an association of undertakings
° Piau: There must be an association of undertakings and the content of its decision
must be considered as streamlining the economic activity of the undertakings covered
by the association. It does not matter of the decision is legally binding or not, but it
must be considered binding by the undertakings themselves. Non-binding
recommendations are therefore also covered. Or;
• In the absence of an agreement and decision of an association of undertakings but presence
of exchange of individualised commercially sensitive information non rebutted by the
undertakings involved, a concerted practice may be conducted. This means an act of
coordination has taken place (concertation) which
resulted in a certain market behaviour (practice) and there is a causal link between the
coordination and the behaviour
° Sugar case: The Court of Justice defined a concerted practice as any direct or indirect
contact between economic operators, the object or effect of which its either to influence
the conduct on the market of actual or potential competitors or to disclose to such
competitors the future conduct of the market that they have decided or contemplate to
adopt
• Is the conduct collusive?
• Consten and Grundig: restrictions by object and effect are alternatives. In the case of
restrictions by effect, determined must be whether or not the conduct restrict actual or
potential competition as compared to the situation which would have existed in the
absence of the conduct. Restrictions by object reveal a sufficient degree of harm to the
competition in the purpose itself or by its very nature, without any need of a detailed analysis
on the effects on the market. These are the so-called hardcore restrictions and examples are
given in Article 101(1)(a)-(e) TFEU
• De Minimis Notice: the conduct does not appreciably restrict competition if the aggregate
market share held by the parties to the agreement does not exceed 10% in the case of
horizontal agreements or 15% in the case of vertical agreements. This threshold does not
apply to agreements that have as their object the prevention, restriction of distortion of
competition
• Does the undertakings’ collusive conduct affect trade between Member States in an
appreciable manner?
° Is there trade? This involves all cross-border activities
° Is the conduct observed capable to affect trade? Consten and Grundig; Société Technique
Minière: a sufficient degree of probability that the collusive conduct at stake influences
directly or indirectly, actually or potentially, the pattern of trade between Member States
°Appreciability of the effect. NAAT-rule: agreements will generally not fall within the
jurisdictional scope of this Article if aggregate market share of the parties on any relevant
market within the Union affected by the agreement does not exceed 5% and the aggregate
Union turnover of the undertakings concerned in the products covered by the agreement
does not exceed 40 million euro
2 Conclusion: The collusive conduct is breaching Article 101(1) TFEU
1 Article 101(1) TFEU
• Is it an undertaking?
• Höfner and Elser
° Any single economic entity (natural persons, liberal professions and a State or a
state entity) and regardless the way in which it is financed
° Engaged in an economic activity (are goods or services offered on the market which is
not exercising public law authority, meaning an activity which necessarily has to be
provided by the State). A final consumer will never constitute an undertaking
• Is the conduct covered by Article 101(1) TFEU?
• An agreement is a concurrence of wills and can either be formal (contract) or informal.
Informal agreements imply that so long as there is a concurrence of wills, constituting the
faithful expression of parties’ intention, its form is unimportant (‘gentlemen’s agreement’)
° Consten and Grundig: agreements can either be horizontal (when the undertakings
concerned operate at the same level of the supply chain) or vertical. Vertical
agreements however are considered to be less harmful as a result of inter-brand and
intra-brand competition. Inter-brand competition is competition between producers of
different brands. Intra-brand competition is the competition between distributors of
the same brand
° Bayer: agreements may be hidden as an apparently unilateral behaviour. Or;
• Decision of an association of undertakings
° Piau: There must be an association of undertakings and the content of its decision
must be considered as streamlining the economic activity of the undertakings covered
by the association. It does not matter of the decision is legally binding or not, but it
must be considered binding by the undertakings themselves. Non-binding
recommendations are therefore also covered. Or;
• In the absence of an agreement and decision of an association of undertakings but presence
of exchange of individualised commercially sensitive information non rebutted by the
undertakings involved, a concerted practice may be conducted. This means an act of
coordination has taken place (concertation) which
resulted in a certain market behaviour (practice) and there is a causal link between the
coordination and the behaviour
° Sugar case: The Court of Justice defined a concerted practice as any direct or indirect
contact between economic operators, the object or effect of which its either to influence
the conduct on the market of actual or potential competitors or to disclose to such
competitors the future conduct of the market that they have decided or contemplate to
adopt
• Is the conduct collusive?
• Consten and Grundig: restrictions by object and effect are alternatives. In the case of
restrictions by effect, determined must be whether or not the conduct restrict actual or
potential competition as compared to the situation which would have existed in the
absence of the conduct. Restrictions by object reveal a sufficient degree of harm to the
competition in the purpose itself or by its very nature, without any need of a detailed analysis
on the effects on the market. These are the so-called hardcore restrictions and examples are
given in Article 101(1)(a)-(e) TFEU
• De Minimis Notice: the conduct does not appreciably restrict competition if the aggregate
market share held by the parties to the agreement does not exceed 10% in the case of
horizontal agreements or 15% in the case of vertical agreements. This threshold does not
apply to agreements that have as their object the prevention, restriction of distortion of
competition
• Does the undertakings’ collusive conduct affect trade between Member States in an
appreciable manner?
° Is there trade? This involves all cross-border activities
° Is the conduct observed capable to affect trade? Consten and Grundig; Société Technique
Minière: a sufficient degree of probability that the collusive conduct at stake influences
directly or indirectly, actually or potentially, the pattern of trade between Member States
°Appreciability of the effect. NAAT-rule: agreements will generally not fall within the
jurisdictional scope of this Article if aggregate market share of the parties on any relevant
market within the Union affected by the agreement does not exceed 5% and the aggregate
Union turnover of the undertakings concerned in the products covered by the agreement
does not exceed 40 million euro
2 Conclusion: The collusive conduct is breaching Article 101(1) TFEU
