Erasmus School of Law 2025-2026
European Union
Law
Summary B2
Gwen Roelofs
30-10-2025
,Week 1:
E- lesson introduction into EU competition law
Goals legislation:
- Fair competition between undertakings in the internal market of the EU;
- Promote market integration between the markets/economies of the MS.
Art. 101 TFEU: prohibition of cartels or anti-competitive collusive behavior between
undertakings.
Art. 102 TFEU: prohibition on the abuse of a dominant position by one or more undertakings.
Art. 107 TFEU: prohibition of providing State Aid by MS to selective undertakings.
E- lesson the prohibition of cartels: Art. 101 TFEU
Article 101 TFEU consists of three important paragraphs:
The rule prohibiting anticompetitive agreements – Art. 101(1) TFEU;
The consequences of anticompetitive conducts – Art. 101(2) TFEU;
The possibility for exemptions (‘vrijstellingen’) for conducts that follow under
paragraph 1 –Art. 101(3) TFEU.
4 conditions for the application of the prohibition:
1. The actors involved must be qualified as ‘undertakings’;
a. Definition ‘undertaking’ Höfner and Elser-case: revolves around the activity
of the economic operator and not its legal or institutional form. 2 elements:
i. Irrelevance of legal form or financing;
ii. Economic activity required:
1. Offering goods or services on the market;
2. The activity could at least in principle be carried on by a private
undertaking in order to make profits
b. Exceptions:
i. The public powers exceptions (SAT v. Eurocontrol case):
1. Core principle: activities that are inherently sovereign – linked
to the exercise of public authority – are not considered
economic.
2. Eurocontrol’s role: Airspace supervision and safety are
regulatory functions, not market services.
3. Legal outcome: non-commercial and exclusive to the state
not an undertaking EU competition law did not apply.
, 4. Key: if an entity performs tasks that are essential functions of
the state, even if it issues invoices or interacts with private
actors, it may fall outside the scope of art. 101 TFEU.
ii. Solidarity-based, non-commercial activities (Poucet and Pistre case):
1. Core principle: activities rooted in social solidarity, especially
those governed by statutory obligations, are not economic.
2. Sickness Funds’ Role: managed public social security schemes
with no profit motive, no competition, and benefits unrelated
to contributions.
3. Legal outcome: non-undertakings competition law did not
apply.
4. Criteria:
a. Objective is social, not commercial;
b. High level of solidarity;
c. Strong government supervision.
2. Their conduct must be captured by one of the three forms mentioned:
a. An agreement = concurrence of wills among parties, form unimportant
(multilateral, bilateral) .
i. Horizontal agreements = between undertakings that are competing
with each other at the same level of the commercial chain.
ii. Vertical agreements = between undertakings at different levels of the
commercial chain (also covered, Consten and Grundig case).
iii. Inter-brand competition: between producers of different brands;
iv. Intra-band competition: between distributors of the same brand.
Last distinction is important when it comes to vertical restrictions
since intra-brand competition is restricted by the production of
product vis-à-vis its distributors.
v. Bayer case: the burden of proof lies with the Commission to show that
the other party actively or tacitly agreed to the anti-competitive
conduct. Unilateral.
b. Concerted practices = ‘’does not have all the elements of a contract but may
inter alia arise out of coordination which becomes apparent from the
behavior of the participants.” (Suiker Unie and ICI v Commission)
c. Decisions of association of undertakings = usually consists of undertakings of
the same general type and makes itself responsible for representing and
defending their common interests vis-à-vis other economic operators,
government bodies and the public in general. (Wouters)
, 3. Their conduct must be collusive in a sense that it is anti-competitive by object or
effect (alternative);
a. Object = content, hardcore restriction (ex. Price-fixing clauses).
i. Cartes Bancaires:
1. Content of its provisions;
2. Objectives;
3. Economic and legal context;
4. Nature of goods/services affected;
5. Real conditions of the functioning and structure of the market.
If the coordination does not reveal a sufficient degree of harm, it
cannot be classified as a restriction by object. In that case, the
analysis must shift to restriction by effect.
b. Effect = impact, requires legal and economic analysis.
i. John Deere: The sharing of information through the register was not
considered a hardcore restriction, but could have a restrictive effect.
ii. De minimis rule: if there is or can be no noticeable effect on
competition, the prohibition of Article 101(1) TFEU does not apply
minor market imperfections will be tolerated.
1. $2: only effect;
2. $6: confirms applicability to agreements, concerted practices
and decisions of associations of undertakings;
3. $8-$10: criteria.
4. The collusive conduct must affect the trade between MS.
a. Consten and Grundig: ‘the agreement is capable of constituting a threat,
either direct or indirect, actual or potential, to freedom of trade between
member states in a manner which might harm the attainment of the
objectives of a single market between states.’
b. NAAT Guideline:
i. Codifies the pattern of trade-test from the STM-case ($23-24);
1. Whether the collusion is capable ($26);
2. Of having a direct or indirect, actual or potential ($36);
3. Influence on the pattern of trade ($33) between MS.
ii. Establishes thresholds below which the conduct is considered not
having an appreciable effect on trade between MS ($52).
1. Market share must not exceed 5%;
2. Union turnover must not exceed 40 million euro.
Depends on circumstances, but not exceeding = non-application of
the prohibition of art. 101 (1) TFEU.
c. Société Technique Minière added that the collusion should affect the ‘pattern
of trade’ between MS.
European Union
Law
Summary B2
Gwen Roelofs
30-10-2025
,Week 1:
E- lesson introduction into EU competition law
Goals legislation:
- Fair competition between undertakings in the internal market of the EU;
- Promote market integration between the markets/economies of the MS.
Art. 101 TFEU: prohibition of cartels or anti-competitive collusive behavior between
undertakings.
Art. 102 TFEU: prohibition on the abuse of a dominant position by one or more undertakings.
Art. 107 TFEU: prohibition of providing State Aid by MS to selective undertakings.
E- lesson the prohibition of cartels: Art. 101 TFEU
Article 101 TFEU consists of three important paragraphs:
The rule prohibiting anticompetitive agreements – Art. 101(1) TFEU;
The consequences of anticompetitive conducts – Art. 101(2) TFEU;
The possibility for exemptions (‘vrijstellingen’) for conducts that follow under
paragraph 1 –Art. 101(3) TFEU.
4 conditions for the application of the prohibition:
1. The actors involved must be qualified as ‘undertakings’;
a. Definition ‘undertaking’ Höfner and Elser-case: revolves around the activity
of the economic operator and not its legal or institutional form. 2 elements:
i. Irrelevance of legal form or financing;
ii. Economic activity required:
1. Offering goods or services on the market;
2. The activity could at least in principle be carried on by a private
undertaking in order to make profits
b. Exceptions:
i. The public powers exceptions (SAT v. Eurocontrol case):
1. Core principle: activities that are inherently sovereign – linked
to the exercise of public authority – are not considered
economic.
2. Eurocontrol’s role: Airspace supervision and safety are
regulatory functions, not market services.
3. Legal outcome: non-commercial and exclusive to the state
not an undertaking EU competition law did not apply.
, 4. Key: if an entity performs tasks that are essential functions of
the state, even if it issues invoices or interacts with private
actors, it may fall outside the scope of art. 101 TFEU.
ii. Solidarity-based, non-commercial activities (Poucet and Pistre case):
1. Core principle: activities rooted in social solidarity, especially
those governed by statutory obligations, are not economic.
2. Sickness Funds’ Role: managed public social security schemes
with no profit motive, no competition, and benefits unrelated
to contributions.
3. Legal outcome: non-undertakings competition law did not
apply.
4. Criteria:
a. Objective is social, not commercial;
b. High level of solidarity;
c. Strong government supervision.
2. Their conduct must be captured by one of the three forms mentioned:
a. An agreement = concurrence of wills among parties, form unimportant
(multilateral, bilateral) .
i. Horizontal agreements = between undertakings that are competing
with each other at the same level of the commercial chain.
ii. Vertical agreements = between undertakings at different levels of the
commercial chain (also covered, Consten and Grundig case).
iii. Inter-brand competition: between producers of different brands;
iv. Intra-band competition: between distributors of the same brand.
Last distinction is important when it comes to vertical restrictions
since intra-brand competition is restricted by the production of
product vis-à-vis its distributors.
v. Bayer case: the burden of proof lies with the Commission to show that
the other party actively or tacitly agreed to the anti-competitive
conduct. Unilateral.
b. Concerted practices = ‘’does not have all the elements of a contract but may
inter alia arise out of coordination which becomes apparent from the
behavior of the participants.” (Suiker Unie and ICI v Commission)
c. Decisions of association of undertakings = usually consists of undertakings of
the same general type and makes itself responsible for representing and
defending their common interests vis-à-vis other economic operators,
government bodies and the public in general. (Wouters)
, 3. Their conduct must be collusive in a sense that it is anti-competitive by object or
effect (alternative);
a. Object = content, hardcore restriction (ex. Price-fixing clauses).
i. Cartes Bancaires:
1. Content of its provisions;
2. Objectives;
3. Economic and legal context;
4. Nature of goods/services affected;
5. Real conditions of the functioning and structure of the market.
If the coordination does not reveal a sufficient degree of harm, it
cannot be classified as a restriction by object. In that case, the
analysis must shift to restriction by effect.
b. Effect = impact, requires legal and economic analysis.
i. John Deere: The sharing of information through the register was not
considered a hardcore restriction, but could have a restrictive effect.
ii. De minimis rule: if there is or can be no noticeable effect on
competition, the prohibition of Article 101(1) TFEU does not apply
minor market imperfections will be tolerated.
1. $2: only effect;
2. $6: confirms applicability to agreements, concerted practices
and decisions of associations of undertakings;
3. $8-$10: criteria.
4. The collusive conduct must affect the trade between MS.
a. Consten and Grundig: ‘the agreement is capable of constituting a threat,
either direct or indirect, actual or potential, to freedom of trade between
member states in a manner which might harm the attainment of the
objectives of a single market between states.’
b. NAAT Guideline:
i. Codifies the pattern of trade-test from the STM-case ($23-24);
1. Whether the collusion is capable ($26);
2. Of having a direct or indirect, actual or potential ($36);
3. Influence on the pattern of trade ($33) between MS.
ii. Establishes thresholds below which the conduct is considered not
having an appreciable effect on trade between MS ($52).
1. Market share must not exceed 5%;
2. Union turnover must not exceed 40 million euro.
Depends on circumstances, but not exceeding = non-application of
the prohibition of art. 101 (1) TFEU.
c. Société Technique Minière added that the collusion should affect the ‘pattern
of trade’ between MS.
