AIDE Memoire Competition Law Article 101 TFEU PDF

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AIDE MEMOIRE: Competition Law Article 101/ TFEU restrictive trading practices Introduction : explain the prohibition in Article 101/TFEU ; define an undertaking APPLY ; note that trade between MS has to be affected and that it does not matter where the undertaking is established because EU law has e...

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AIDE MEMOIRE: Competition Law Article 101/ TFEU restrictive trading practices Introduction: explain the prohibition in Article 101/TFEU; define an undertaking APPLY; note that trade between MS has to be affected and that it does not matter where the undertaking is established because EU law has extra-territorial effect (Wood Pulp Cartel Case) APPLY ▼ STEP 1  Need two or more undertakings APPLY  Need one or more of the following:

▼ agreement Bayer form unimportant Written/unwritten; signed/ unsigned; gentleman’s agt BMW Case APPLY

decision of association of undertakings Wouters, Piau APPLY

concerted practice (attempt at secrecy, evidence destroyed etc.) Dyestuffs = form of co-ordination Sugar Cartel = practical co-operation with direct/indirect contact; Cimenteries = intent to communicate+party receiving aware i.e. relationship of cause and effect btw the undertakings APPLY

▼ ▼ If dealing with a potential concerted practice and there is little/no evidence may conduct economic analysis (ICI); if parallel behaviour identified this is not per se evidence of concertation (Wood Pulp Cartel Case). Burden of proof on Commission/NCA that the only plausible explanation is concertation and undertaking may justify behaviour as for example, rational reaction to the market; high degree of transparency in the market; oligopoly APPLY

▼ DEFINE the 2 types (vertical between undertakings at different levels or horizontal between undertakings at the same level i.e. CARTEL) APPLY

▼  explain it has to have the object or effect of preventing restricting or distorting competition

▼  explain the required effect on inter-state trade, see STM test and Commission Guidelines BUT note De Minimis Notice 2001 ‘safe harbour’ aggregate market share - horizontal (10%) vertical (15%) unknown (10%) note hardcore restrictions esp. price fixing & limits on markets APPLY ▼ STEP 2  identify types of breach (e.g. price fixing, limits on markets) APPLY ▼ STEP 3  identify that any prohibited agreement/decision is automatically void; severance may be used, except for concerted practices APPLY ▼ STEP 4  consider if exemption may apply HORIZONTAL VERTICAL Cannot use R330/2010; use A101(3) individual exemption Can use R330/2010, market share buyer & seller no more than 30% APPLY 4 cumulative criteria; explain and APPLY If not available try A101(3) 4 cumulative criteria APPLY ▼ STEP 5  Regulation 1/2003 powers of investigation and fines APPLY (note instructions on if you need investigation powers and fines or just one)...