Article 101 TFEU
1. The following shall be prohibited as incompatible with the internal market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market, and in particular those which:
(a) directly or indirectly fix purchase or selling prices or any other trading conditions;
(b) limit or control production, markets, technical development, or investment;
(c) share markets or sources of supply;
(d) apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;
(e) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.
2. Any agreements or decisions prohibited pursuant to this Article shall be automatically void.
3. The provisions of paragraph 1 may, however, be declared inapplicable in the case of:
- any agreement or category of agreements between undertakings,
- any decision or category of decisions by associations of undertakings,
- any concerted practice or category of concerted practices,
which contributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, and which does not:
(a) impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives;
(b) afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question.
Concept of undertakings
Concept of agreement
Forms of prohibited conduct
Restriction of competition
In the context of Article 101(1) TFEU, the principle of subsidiarity is given concrete form by the limitation of the prohibition contained therein to agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States. Thus, where a series of objective factors of law or fact makes it possible to foresee with a sufficient degree of probability that such conduct may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States, that conduct must be regarded as capable of affecting trade between Member States (Consten & Grundig p. 341, Case C‑359/01P British Sugar v Commission para 27), so that it is appropriate for the Union to take action, by reason of the scale and the effects of its action (see, to that effect, Case T‑65/98 Van den Bergh Foods v Commission, paras 197 and 198).
In order to assess whether an arrangement has an appreciable effect on trade between Member States, it is necessary to examine it in its economic and legal context (see, to that effect, Case C‑393/92 Almelo, para 37).
Commercial Solvents Co refused to supply Zoja with certain raw materials necessary for the production of ethambutol. The refusal could not affect the trade between member states since Zoja exported outside the Union 90% of its production based on ethambutol. CJ states that article 102 TFEU covers also abuses which indirectly prejudice consumers by impairing the effective competition structure.
Appreciable effect on trade
Common types of agreements and abuses - appreciability test
Any agreement that violates article 101(1) TFEU shall be "automatically void". This should be read in conjunction with the rule stipulated in the old . In the Lisbon Treaty this rule is expressed by the Protocol No 27.
However if the four criteria in article 101(3) TFEU are satisfied, then the agreement is exempted from the prohibition in article 101(1) TFEU. In the absence of hardcore restrictions and covered by a block exemption, an agreement is presumed to escape the prohibition in 101(1) TFEU.
Only the clauses that violate article 101(1) are rendered null by article 101(2) TFEU. Société Technique Minière para 250
The consequences of nullity are not governed by the Union law, but the national law under the principles of severability. Société de Vente de Ciments para 11
However the national law cannot dictate that a party to an illegal agreement may not bring action in Court for damages against the counter party. Courage v Crehan para 25
The economic entity doctrine- Imperial Chemical Industries para 134
The effects doctrine
Already in the Decision in Imperial Chemical Industries, the Commission invoked the effects doctrine. (See Aluminium from Eastern Europe Decision, recital 13)
AG Darmon in Wood Pulp advocates for the effects doctrine and concludes that there is no rule of international law coming in conflict with the named doctrine. (Opinion of AG Darmon/Wood Pulp I para 57)
Merger Decision Gencor/Lonrho
The General Court in Gencor endorsed the effects doctrine (para 90)
The implementation doctrine
The Court of Justice has adopted a new doctrine in conjunction with the economic unit doctrine. The wording used is "put into effect" instead of pure "effects" and it seems to require some act or conduct within the Union which implements the agreement. (Word Pulp I paras 16-18)
International comity principleAs regards the argument relating to disregard of international comity, it suffices to observe that it amounts to calling in question the Union' s jurisdiction to apply its competition rules to conduct such as that found to exist in this case and that, as such, that argument has already been rejected. (Word Pulp I para 22)
General Principles for 101(3) TFEU
Efficiency gains- first criterion under 101(3) TFEU
Consumer welfare-second criterion under 101(3) TFEU
Indispensability- third criterion under 101(3) TFEU
Dyestuffs case is the leading case paras 64-68
Parallel conduct is not illegal unless there are strong indications that a general and uniform increase on those different markets can be only be explained by a common understanding between the competitors. The market structure and the cost structure are very important factors. More transparent the market is and more similar are the costs structures, easier is to coordinate the market conduct w/o any kind of common understanding.
Unilateral measures do not make object of the prohibition under Article 101 TFEU. However unilateral measures can have such an anticompetitive effect and amount to concerted practices. This is the case when the buyer follows the supplier policy and there is a possibility for the supplier to police and monitor the measure implementation. A selective distribution system based on quantitative criteria for admission to the network is illegal. The concerted practices aimed to hinder the parallel trade. The monitoring and police device is the selective distribution system. The Commission alleged also that Hasselblad GB delayed the repair of the cameras related to parallel trade, though it failed to prove this fact. (Hasselblad Cameras- Selective Distribution- )