PROBLEM 6
Learning objectives:
1. What are the rules regarding the prohibition of cartels in European competition law?
2. Solve the problem: Have the seven legal entities breached European competition law and, if so, what
specific article applies to this situation? (niet uitgewerkt)
Literature:
- E-lesson: Article 101 TFEU: Prohibition of Cartels
Other:
- ‘NAAT’, Commission, ‘Guidelines on the Effect on Trade Concept Contained in Articles [101 and 102] of the
Treaty’ [2004]
- Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition
laid down in Articles 81 and 82 of the Treaty
- De Minimis Notice, Commission Notice on Agreements of Minor Importance which Do Not Appreciably
Restrict Competition Under Article 101(1) of the Treaty Establishing the European Union
Case law:
Höfner and Elser-case (C-41/90) Société Technique Minière (56/65) (Only rule)
Consten and Grundig-case (C-56/64 and C-58/64) Delimitis-case (C-234/89)
Bayer-case (C-41/96) (Only rule)
1. WHAT ARE THE RULES REGARDING THE PROHIBITION OF CARTELS IN
EUROPEAN COMPETITION LAW?
Introduction
EU competition law consists of European legislation aimed at protecting fair competition between
undertakings in the internal market of the EU. To guarantee this result, EU competition law is comprised
of rules to avoid that free competition is altered or reduced by undertakings’ restrictive practices to the
detriment of consumers.
EU competition law includes the following provisions:
• Article 101 TFEU dealing with the prohibition of cartels and anti-competitive agreements;
• Article 102 TFEU dealing with the abuse of a dominant position;
• Article 107 TFEU concerning State Aid.
The European Commission and the national competition authorities (NCA’s) can enforce EU
Competition rules.
Introduction into Article 101 TFEU
One of the important pillars of the European competition law is Article 101 TFEU. This provision prohibits
anti-competitive collusions 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 parts:
1. The rule prohibiting anticompetitive agreements: Article 101 (1);
2. The consequences of anticompetitive conducts: Article 101 (2);
3. The possibility for exemptions for conducts that follow under paragraph 1: Article 101 (3).
1
, The following step-by-step overview may be used to solve an Article 101 TFEU case study:
Article 101(1) TFEU
Article 101 prohibits multilateral behavior between undertakings (broadly referred to as ‘collusion’).
There are four conditions for the application of Article 101 TFEU:
(1) The actors involved must be qualified as ‘undertakings’
(2) Their conduct must be captured by the forms mentioned in this paragraph
(3) Their conduct must be collusive in a sense that it is anti-competitive by object or effect, and
(4) The collusive conduct must affect trade between Member States.
In order to understand what type of behavior is prohibited under Article 101, we first have to define the
meaning of the term ‘undertaking'.
2
Learning objectives:
1. What are the rules regarding the prohibition of cartels in European competition law?
2. Solve the problem: Have the seven legal entities breached European competition law and, if so, what
specific article applies to this situation? (niet uitgewerkt)
Literature:
- E-lesson: Article 101 TFEU: Prohibition of Cartels
Other:
- ‘NAAT’, Commission, ‘Guidelines on the Effect on Trade Concept Contained in Articles [101 and 102] of the
Treaty’ [2004]
- Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition
laid down in Articles 81 and 82 of the Treaty
- De Minimis Notice, Commission Notice on Agreements of Minor Importance which Do Not Appreciably
Restrict Competition Under Article 101(1) of the Treaty Establishing the European Union
Case law:
Höfner and Elser-case (C-41/90) Société Technique Minière (56/65) (Only rule)
Consten and Grundig-case (C-56/64 and C-58/64) Delimitis-case (C-234/89)
Bayer-case (C-41/96) (Only rule)
1. WHAT ARE THE RULES REGARDING THE PROHIBITION OF CARTELS IN
EUROPEAN COMPETITION LAW?
Introduction
EU competition law consists of European legislation aimed at protecting fair competition between
undertakings in the internal market of the EU. To guarantee this result, EU competition law is comprised
of rules to avoid that free competition is altered or reduced by undertakings’ restrictive practices to the
detriment of consumers.
EU competition law includes the following provisions:
• Article 101 TFEU dealing with the prohibition of cartels and anti-competitive agreements;
• Article 102 TFEU dealing with the abuse of a dominant position;
• Article 107 TFEU concerning State Aid.
The European Commission and the national competition authorities (NCA’s) can enforce EU
Competition rules.
Introduction into Article 101 TFEU
One of the important pillars of the European competition law is Article 101 TFEU. This provision prohibits
anti-competitive collusions 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 parts:
1. The rule prohibiting anticompetitive agreements: Article 101 (1);
2. The consequences of anticompetitive conducts: Article 101 (2);
3. The possibility for exemptions for conducts that follow under paragraph 1: Article 101 (3).
1
, The following step-by-step overview may be used to solve an Article 101 TFEU case study:
Article 101(1) TFEU
Article 101 prohibits multilateral behavior between undertakings (broadly referred to as ‘collusion’).
There are four conditions for the application of Article 101 TFEU:
(1) The actors involved must be qualified as ‘undertakings’
(2) Their conduct must be captured by the forms mentioned in this paragraph
(3) Their conduct must be collusive in a sense that it is anti-competitive by object or effect, and
(4) The collusive conduct must affect trade between Member States.
In order to understand what type of behavior is prohibited under Article 101, we first have to define the
meaning of the term ‘undertaking'.
2
