Anti-competitive Agreements, Decisions and
Concerted Practices
ARTICLE 101 TFEU
a) Article 101 TFEU - Prohibition
1) 2 or more undertakings
Legal or natural persons carrying on economic/commercial activities - [Hofner and
Elser]
Must form separate economic entities.
o Companies, partnerships, sole traders, non-profit making organisations.
Successor firms (merger) - [Compagnie Royale]
o Liability cannot be avoided by subsequently forming part of another
organisation > Liability imposed on former entity => Successor firm.
Exceptions
Parent & subsidiary cos > One single economic entity.
Agency agreements > If financial/commercial risk of agent’s activity is borne by
principal.
o ‘Guidelines on Vertical Restraints’ > Determines whether or not agent (not
principal) has taken on financial/commercial risk.
o Did agent pay for sales or promotional material?
o Did agent maintain stock at its own cost?
o Did agent offer after-sales service?
2) Agreements/Decisions/Concerted practices
Agreements
In writing/orally
Non-legally binding ‘gentlemen’s agreements’ - [Chemiefarma]
Decisions by associations of undertakings
Decisions by trade associations > Industry trade group, business association, sector
association).
Concerted practices
Businesses knowingly cooperate with each other rather than take risks against
each other > Announces price increases at the same time > ‘Parallel pricing’
[Dyestuffs]
UNLESS market is ‘oligopoly’ - [Woodpulp]
o Oligopoly occurs where market is controlled by few undertakings > Parallel
conduct is often regarded as natural economic phenomenon.
Concerted Practices
ARTICLE 101 TFEU
a) Article 101 TFEU - Prohibition
1) 2 or more undertakings
Legal or natural persons carrying on economic/commercial activities - [Hofner and
Elser]
Must form separate economic entities.
o Companies, partnerships, sole traders, non-profit making organisations.
Successor firms (merger) - [Compagnie Royale]
o Liability cannot be avoided by subsequently forming part of another
organisation > Liability imposed on former entity => Successor firm.
Exceptions
Parent & subsidiary cos > One single economic entity.
Agency agreements > If financial/commercial risk of agent’s activity is borne by
principal.
o ‘Guidelines on Vertical Restraints’ > Determines whether or not agent (not
principal) has taken on financial/commercial risk.
o Did agent pay for sales or promotional material?
o Did agent maintain stock at its own cost?
o Did agent offer after-sales service?
2) Agreements/Decisions/Concerted practices
Agreements
In writing/orally
Non-legally binding ‘gentlemen’s agreements’ - [Chemiefarma]
Decisions by associations of undertakings
Decisions by trade associations > Industry trade group, business association, sector
association).
Concerted practices
Businesses knowingly cooperate with each other rather than take risks against
each other > Announces price increases at the same time > ‘Parallel pricing’
[Dyestuffs]
UNLESS market is ‘oligopoly’ - [Woodpulp]
o Oligopoly occurs where market is controlled by few undertakings > Parallel
conduct is often regarded as natural economic phenomenon.
