Term
| What is the purpose of Article 101? |
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Definition
| To protect the normal, competitive working of the single market. |
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Term
| How does Article 101 attempt to achieve its purpose? |
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Definition
By prohibiting all...
a) agreements between undertakings
b) decisions by associations of undertakings, or
c)concerted practices,
WHICH MAY...
1) affect trade between Member States
AND
2) which have as their object OR effect the prevention, restriction or distortion of competition within the single market |
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Term
| What page of the statute book is Article 101 on? |
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Definition
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Term
| What do Article 101(1)(a)-(e) say/do |
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Definition
| Commonly known as the 'black list', article 101(1)(a)-(e) provides a non-exhaustive list of prohibited actions |
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Term
| What is the 'black list'? |
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Definition
| Article 101(1)(a)-(e) - a non-exhaustive list of prohibited actions |
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Term
| General structure, what does Article 101(1) do? |
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Definition
| Contains the rule prohibiting anti-competitive agreements, decisions and concerted practices. |
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Term
| General structure, what does Article 101(2) do? |
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Definition
Sets out the legal effect of prohibition of 101(1) - any agreement which is in breach of Art101(1) is VOID
Act has retrospective effect... therefore, earlier agreements will also be void |
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Term
| General structure, what does Article 101(3) do? |
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Definition
| Exemptions to 101(1). Provides that 101(1) can be declared inapplicable if agreements/decisions.concerted practices have certain pro-competitive effects. |
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Term
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Definition
| Any natural or legal person engaged in some form of economic activity involving the provision of goods or services |
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Term
| Give some examples of undertakings |
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Definition
| Individuals, limited companies (even if based or incor-porated outside the EU), partnerships, trade associations, the professions, non profit-making organisations, state organisations which carry on economic or commercial activities. |
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Term
| Hofner & Elser V Macroton |
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Definition
| The German Federal Office for Employment was held to be an undertaking, even though it is a public body. |
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Term
| Distribution of package tours during the 1990 world cup [1992] |
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Definition
| CJ held that the Italian football association and the local organising committee were undertakings. |
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Term
| Can state bodies be identified as undertakings? |
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Definition
| YES - Hofner & Else v Macroton |
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Term
| Motosykletstiki Omospondia Ellados (MOTOE) v Elliniko Domosio |
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Definition
| Even if an 'undertaking' = non-profit making = irrelevant, as the are still competing with other operators which are profit-making |
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Term
| In order for the prohibition under Article 101(1) to take place, there are three elements which need to be satisfied. What are they? |
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Definition
1) some sort of collusion between one or more undertakings
2) the collusion must have an actual or potential effect on trade between Member States
3) the collusion must have as its object or effect the prevention, restriction or distortion of competition within the single market. |
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Term
| What is a fundamental problem associated with the wide interpretation that Art 101(1) can/has been given? |
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Definition
Potentially, it is wide enough to encompass all type of contracts... and as contracts usually contain some types of restraints/limitations/restrictions, potentially EVERYTHING could = prohibited act!!!
e.g. exclusive contracts, agreement to hold something etc... |
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Term
| Describe the balancing act which is necessary between Art101(1) and Art 101(3) |
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Definition
| As contracts are complex, may contain both pro- and anti- competitive clauses - therefore, must establish overall effect |
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Term
| What are the three ways in which parties may collude / three forms of collusion - as identified by Article 101(1) |
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Definition
1) Agreements between undertakings
2)Decisions by associations of undertakings
3) concerted practices |
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Term
| When the Commission / NCAs are investigating/prosecuting parties for Art101(1) breaches, is it necessary for them to identify which type of collusion has taken place? |
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Definition
| NO - the Article has been interpreted so as not to require that |
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Term
| Commission v ANIC Partecipazioni |
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Definition
CJ HELD, ART 101(1) DISTINGUISHES BETWEEN DIFFERENT TYPES OF AGREEMENT AND CONCERTED PRACTICES IN ORDER TO WIDEN THE NET
CJ HELD IT WAS NOT NECESSARY TO DISTINGUISH EXACTLY WHICH CATEGORY THE BEHAVIOUR OF UNDERTAKING FALLS WITHIN - THE UNDERTAKING MAY PARTIALLY FALL IN TO MORE THAN ONE
CJ held that ANIC's behaviour manifested both an unlawful agreement and a concerted practice. However, CJ held that it was unnecessary to establish which category the behaviour fell in to. |
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Term
| AC Treuhand AG v Commission |
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Definition
COURTS ARE WILLING TO GIVE A VERY WIDE INTERPRETATION TO COLLUSION
FACILITATING A CARTEL/COLLUSION CAN = COLLUSION ITSELF
Consultancy firm which was not directly involved in a collusion (not party to the agreement & not even operating in the same market as the cartel), but helped to administratively facilitate it, was held to be guilty of collusion |
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Term
| Agreements between undertakings - how may the 'undertakings' agree? |
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Definition
a)Orally or written Teapea v Commission
b) Legally binding agreements
c) Gemtlemen's agreements
d) Agreements considered to be morally binding only
e)HERCULES CHEMICALS NV v COMMISSION - 'it is sufficient if the undertakings... have expressed their joint intention to conduct themselves on the market in a specific way.
f) Acquiescing to another's conduct |
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Term
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Definition
| 'Agreement' can be oral or written |
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Term
| Hercules chemicals V Commission |
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Definition
AGREEMENT = SOMEHOW EXPRESSED INTENTION
it is sufficient if the undertakings... have expressed their joint intention to conduct themselves on the market in a specific way |
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Term
| What is the minimum number of parties that an agreement must be between? |
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Definition
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Term
| Bayer AG v Commission [2000] |
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Definition
| Unilateral behaviour, or conduct by one undertaking only will, generally, not be found to amount to an agreement under Art 101(1) |
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Term
| Unilateral behaviour by one undertaking will not = agreement. However, under what circumstances may an agreement be found where it appears as though there is only one active 'undertaking'/party? |
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Definition
| If there is another party which has tacitly acquiesced to the practices/measures adopted by another |
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Term
| Can tacit acquiescence amount to an agreement? |
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Definition
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Term
| What are 'associations of undertakings'? |
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Definition
As it says on the tin -
Predominantly = trade associations which act on behalf of its members
Cn include other types of representative organisations and co-operatives |
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Term
| In what circumstances will decisions by associations of undertakings fall within the ambit of Art 101(1) |
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Definition
| If the decisions might affect trade between member states, and if the decision has as it's objective/effect the prevention, restriction or distortion of competition within the single market. |
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Term
| Vereniging van Cementhandelaren v Commission |
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Definition
| Non-binding recommendations made by trade associations to its members, can also fall within the remit of Article 101(1) - in this instance, it is necessary to consider how members have reacted to non-binding recommendations made by the association in the past + whether the recommendation might have a significant influence on competition within the relevant market. |
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Term
| The case of Vereniging establishes that non-binding recommendations made by associations of undertakings MAY fall within the remit of Article 101(1). What are two things is it necessary to consider in order to establish this? |
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Definition
1) How members have responded to non-binding recommendations in the past. e.g. are they likely to follow it?
2) Whether the non-binding recommendation could have a significant influence on competition within the relevant market. |
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Term
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Definition
| A trade association was involved with the supply of washing machines and dishwashers. The trade association provided that such goods could only be distributed under a common label, and this was held to amount to an decision under Article 101(1) |
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Term
| What is 'concerted practice'? |
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Definition
| A concerted practice may be any co-prdinated or parallel behaviour where there is little evidence of an agreement, other than the suspicious behaviour itself. |
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Term
| What is the point of including 'concerted practices' in Article 101(1) |
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Definition
| In order to catch those forms of co-operation which do not amount to a formal oral or written agreement or decision. |
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Term
ICI v Commission (the 'Dyestuffs' case)
(ICI = Imperial Chemicals Industries) |
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Definition
DO NOT NEED HARD EVIDENCE TO PROVE CONCERTED PRACTICES
Oligopoly market - ten 'undertakings', on three seperate occasions, they had all announced and enacted price increases at suspiciously similar times. CJ held = Collusion = concerted practice
EXCELLENT DEFINITION OF CONCERTED PRACTICES |
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Term
| the Dyestuffs case - definition of concerted practices |
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Definition
a form of coordination between undertakings which, without having reached the stage where an agreement properly so-called has been concluded, knowingly substitutes practical cooperation between them for the risks of competition.
By its very nature, then, a concerted practice does not have all the elements of a contract but may inter alia arise out of coordination which becomes apparent from the behaviour of the participants |
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Term
| Ahlstrom Osakeyhtio and others v Commissions |
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Definition
Joined cases
Commission investigated allegations of concerted practices by a large number of wood pulp producers
HOWEVER, CJ held that in this instance, concertation was not the only plausible explanation for the parallel conduct...
Therefore, held that in the absence of firm, precise and consistent evidence, it must be held that concertation regarding announced prices had not been established. |
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Term
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Definition
Commission did not have any hard evidence, but inferring collusion from their behaviour was enough for a guilty verdict...
Oligopoly, found to be colluding |
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Term
| In order to establish whether concerted practice exists or may be inferred, the Commission or an NCA will look for... |
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Definition
1) Meeting between companies which should be competitiors
2) Identical / very similar actions undertaken by competitors, particularly in relation to pricing (e.g. announcing similar price rises within a short period of time) |
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Term
| Tis ok for competitiors to meet, but not if the contact between them had the object of... |
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Definition
| Influencing markets, and removing risk, so that normal competitive forces in the market do not operate. |
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Term
| ICI attempted to appeal agoinst commission's decision that there had been concerted practices, by arguing that their parallel behaviour was understandable because = 10 competitors in an oligopolistic market. CJ upheld Commission's decision and ruled = concerted practice, BECAUSE... |
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Definition
a)high degree of co-ordination between the various producers
b) the producers had raised their prices by similar amounts on three different occasions
c) the rates of individual price increases were the same in all the relevant countries, and generally, related to the same products
d) the price increases were put in to effect on almost the same day
e) the orders put out by a number of the producers contained very similar wording and were sent out on the same day
f) there was also evidence that the producers had attended some meetings together in Basel and London
g) the Commission proved that the prices of the products bore no relationship to either supplu or demand, and the pricing adopted could not be satisfactorily explained by the producers |
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Term
| In the case of ICI v Commission (Dyestuffs case), what did the CJ say about parallel strategies? |
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Definition
| Parallel strategies may be taken as indicative of concerted practices, however the existence of them was not conclusive in itself, it had to be established whether the apparently prallel strategies are a natural occurence within the particular market, or whether they are as a consequence of concerted practice. |
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Term
| Which case offers an example of the CJ finding that parallel strategies were not as a consequence of concerted practices? |
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Definition
| Ahlstrom Oy v Commission ('the Wood Pulp Cartel' case) |
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