Competition Law and Anti-Trust – Article 101 TFEU (Prohibition of Agreements)

Vocabulary flashcards covering key terms and concepts from Article 101 TFEU and related competition-law case law from the lecture notes.

Article 101 TFEU

Prohibition of agreements, decisions by associations of undertakings, and concerted practices that may affect intra-EU trade and have as object or effect the prevention, restriction, or distortion of competition in the internal market.

Prohibition of agreements that restrict competition

The rule under Article 101(1) that such agreements, decisions, and concerted practices are incompatible with the internal market.

Automatic nullity (Article 101(2))

All prohibited agreements are automatically void; civil effects are dealt with under national law of member states.

Article 101(3) exemption criteria

Exemption if cooperation yields technical/economic progress, consumers obtain a fair share of the resulting benefit, restrictions are indispensable, and competition is not eliminated in a substantial part.

Block Exemption Regulation

Regulations that grant exemptions to Article 101(1) for entire categories of agreements, often with market share caps and blacklists; strongly influencing practice and interpretation.

Object or effect of restricting competition

Cooperation is restricted either by its object (per se) or by its effects (requires proof of impact on competition).

Object category

Cooperation is considered restrictive by its nature, without needing to prove actual market effects.

Effect category

Restriction proven by showing actual or likely effects on competition in the market.

Concerted practices

Coordinated conduct between undertakings that substitutes practical cooperation for competition, even without a formal agreement.

Decisions by associations of undertakings

Acts of trade associations (constitution, regulations, agreements, recommendations) that coordinate member conduct and can subject the association to liability.

Concurrence of wills

Evidence of a meeting of minds; sufficient to prove an agreement, with tacit acquiescence sometimes playing a role in vertical contexts.

Horizontal restrictions

Coordination between undertakings in the same market; often easier to prove in cartel cases.

Vertical cooperation

Cooperation across producer-distributor-retailer relationships; generally less problematic but may require acquiescence from downstream partners.

Bayer case (Adalat distribution in Spain)

Case illustrating that proof under 101(1) requires express or tacit acquiescence by partners; parallel exports limited by wholesalers in Spain.

AC Treuhand

Case where a Swiss consultancy was fined for facilitating cartel conduct, illustrating liability for cartel facilitators under Article 101.

Consten & Grundig

Case establishing that Article 101(1) can apply to agreements with an effect on trade; positive effects do not exempt the prohibition.

Groupement des Cartes Bancaires v Commission

Case showing that concerted practices can exist without an explicit agreement; focus on evidence of coordination and impact on competition.

Suiker Unie v Commission (Sugar Cartel)

Case indicating that a formal plan is not always required; a mental consensus to substitute cooperation for competition can suffice.

Dole Food Company v Commission

Case illustrating that the object category may presuppose effects on the market, allowing less evidence of actual effects.

ICI v Commission (Dyestuffs)

'Concerted practices' can amount to price fixing through coordinated actions; evidence includes timing, similarity of price increases, and communications.

Trade between Member States requirement

Article 101 applies only if the agreement affects trade between Member States; positive effects do not exclude applicability.

Hard core restrictions / cartels

Severe anti-competitive practices such as price fixing, market sharing, or output restrictions that attract strong scrutiny and penalties under Article 101.