EU Competition Policy and Common Agricultural Policy:

application of competition rules in agricultural sectors

Master Thesis

International and European Law:

European Competition Law and Regulation

University of Amsterdam

Author: Vaclav Novacek

Supervisor: Maria Weimer

Date of submission: 02. 01. 2017

 Abstract

The focus of this thesis is the analysis of the interaction and conflict of the Common
Agricultural Policy objectives (as specified within Article 39 TFEU) and the Competition
policy of the European Union and assessment of how does the CMO Regulation address the
EU competition rules. This translates into the analysis of the general and sector specific
derogations of competition rules and setting the research question whether the current state of
these exceptions. This analysis is particularly needed as the latest reform of the Common
Agriculture Policy introduced an element of self-assessment so the farmers are now
responsible for deciding whether their behaviour is exempted from competition rules or not.

Ultimately this assessment concludes that the objectives of the CAP take precedence
over those in relation to competition policy. However, while the application of competition
rules within agriculture may be limited it may not be excluded entirely. The analysis looks
into the case law up to the recent Belgian endives case where CJEU needs to make a decision
whether price fixing mechanisms could be exempted within the scope of agricultural
derogations or not. The analysis also concludes that the general derogations seemed to be too
complicated to be applied when the assessment was done by the Commission, in that respect
the ordinary farmer will barely be able to follow these rules and make a proper sound self-
assessment. While the new Guidelines appear as a step in the right direction, it may not be
enough.
Table of contents

Table of contents ............................................................................................................ 3

List of Abbreviations ..................................................................................................... 4

1. Introduction and scope of thesis ....................................................................... 5

2. Competition issues in food supply chain .......................................................... 6

2.1. Distinctive nature of agriculture ................................................................... 8

3. Legal framework ............................................................................................. 10

3.1. Competition policy ..................................................................................... 10

3.2. Common Agricultural Policy ..................................................................... 12

3.3. Regulations 1184/2006 and 1308/2013 ...................................................... 13

3.4. General derogations within CMO Regulation ............................................ 14

3.5. Crisis derogations ....................................................................................... 21

3.6. Sectoral derogations ................................................................................... 22

3.7. General derogation of Article 101(3) TFEU .............................................. 24

3.8. Belgian endive case .................................................................................... 25

4. Conclusion ...................................................................................................... 27

Bibliography and other sources.................................................................................... 29

List of Abbreviations

CAP Common Agricultural Policy

CJEU Court of Justice of the European Union
CMO Common Market Organisation
CMO Regulation Regulation (EU) No. 1308/2013 of 17 December 2013

DG AGRI Directorate General for Agriculture and Rural Development

DG COMP Directorate General for Competition

EC European Commission
EU European Union

IPO Interbranch organisation

NCA National Competition Authority

PO Producer organisation

TFEU Treaty on the Functioning of the European Union

1. Introduction and scope of thesis
One of the key features of the Common Agriculture Policy (CAP) has been the
protection of agricultural production due to the weak bargaining power of often atomised
farmers. Consequently, the production and food supply could be in jeopardy if there was no
way that would allow farmers a certain degree of cooperation.

On the other hand, EU competition policy strives for maximisation of social welfare
through efficiencies which are gained through a healthy competition on the internal market.
With that regard, cooperation of competitors is generally perceived as harmful to competition
and forbidden.

Inevitably, aspects of these two policies have been in conflict as one allows a degree
of cooperation of competitors in order to guarantee well-being of producers while the other
generally forbids such behaviour in order to protect the competition on the market. These
policies create a conflict that, while probably impossible to definitely resolve, needs to be
addressed so the interaction between these policies can be evaluated. It should also be noted
that while the Competition policy has a Union-wide dimension, the CAP is mainly motivated
by interests of Member States and its label of a common policy is questionable.

The relationship of these two policies is further reflected on a system of derogations to

competition rules in order to fulfil the CAP objectives and allow producers to cooperate. This
system of exceptions is rather complex maze as some of the CAP objectives are not clearly
defined while others appear in a contradictory way and what makes it a after the last reform it
is the producer who has to assess if his actions fulfil the exception criteria (and in case of a
proceeding also bear the burden of proof).

The Commission has set a new objective of simplifying the CAP in order to make the
agricultural economy more competitive. The purpose of simplification is to ensure that
policies, the mechanisms chosen to implement them, and the necessary legal framework are
never more complex than is necessary to achieve the intended objectives effectively. At the
same time, the Commission has provided detailed guidelines on application of sector specific
competition derogations for producers of beef, veal, olive oil and arable crops which try to
explain producers who are now responsible for the assessment of compliance with the
derogations how to proceed with such assessment.

I would also like to point out that given the role of agriculture in the internal market
and economies of the Member States, this thesis will inevitably contain social, economic and
political aspects. I would strive to keep the main arguments and assessments legal ones but I
believe that trying to completely separate the legal issues from the aforementioned aspects
would in this particular setting be a fool’s errand.

While taking the aforementioned problems into consideration, the research question of
this thesis is as follows: How does the CMO Regulation address the EU Competition rules?

In order to answer this question, I would firstly like to briefly introduce the specifics
of food supply chain and its competition related issues, followed by what makes the
agriculture a special sector worth looking into and worth having a specific set of rules.

Secondly, I will assess the legal framework of both the EU competition policy and the
Common Agricultural Policy (including the set of applicable derogations from competition
law) and look into the conflicting objectives of these policies through case law of the CJEU.

Lastly, the concluding remarks will be provided which will summarize the outcomes
of the research and try to address the stated issues.

In order to assess the stated problem and answer the research question, the traditional
method of research of the internal perspective has been used. Therefore, to a major part this
thesis has a very descriptive character. In some cases, I am also trying to look into why certain
changes happened which leads to explanatory assessments. This also translates into the
sources that were used while conducting research – European Union legislation, case law of
the CJEU, decisions of the Commission and doctrine contained in legal textbooks and
journals as well as materials published by the EU institutions.

2. Competition issues in food supply chain

This chapter aims to explain why there is not only a special treatment for agriculture
as a whole due to its distinctive nature but also special sets of rules for various agricultural
sectors as the food chains they are part of can be very different.

According to the survey conducted by DG COMP’s Food Task Force, there is not a
single, homogeneous, and common food supply chain at European level. The degree of
complexity of the food supply chains depends on the specific product and market
characteristics.1

1
Philippe Chauve, Antonia Parera, and An Renckens, 'Agriculture, food and competition law: Moving
the borders' (2014) 5(5) Journal of European Competition Law & Practice 304, 313
 As far as the supply side of certain raw products is concerned, there is a close
integration of production and processing (e.g. for milk or sugar) at local level and the product
can be processed and sold through a rather short supply chain to retailers in national markets.
However, other raw products (for instance fruit and vegetables), a large number of atomised
producers sell locally to many wholesalers who then supply many local retailers, especially in
south-eastern Europe. A completely different supply chain is for manufactured food (e.g.
biscuits and cereal-based products), where large food manufacturers operate in many national
markets but often organise their own distribution networks, own marketing and promotion
activities along national borders and operate a more or less centralised production system
which depends amongst other criteria on how expensive it is to transport the product and how
necessary it is to adapt it to local markets.2

As far as the demand side is concerned, there are major differences between
consumers of different Member States in terms of spending, price sensitivity and attachment
to brands which leads to very different degrees of development of the private labels of
retailers.3 Furthermore, consumers have a preference of shopping essentially at local stores.4

Due to these specifics of supply and demand, food markets are first defined by the
level in the chain and remain predominantly national or regional in scope. In other words in
terms of competition analysis, product markets are usually defined at each level in the chain
and geographic markets are often national (e.g. wholesale supply of many raw and
manufactured products) or local (e.g. retail sales to the end-consumer).5 In order to understand
the competition issues arising in the food supply chains, it is worth assessing the market
structure at each of the following levels: agricultural, wholesale, processing, manufacturing,
and retail levels. Agricultural producers form the least concentrated level in the food supply
chain. The most common situation across agricultural sectors in majority of Member States is
that producers remain atomised or grouped in small cooperatives.6

Competition policy plays a key role in enabling and promoting cooperation between
farmers themselves and other actors in the food supply chain as long as this cooperation

2
Ibid.
3
For more information on private labels and retail issues, see DG COMP’s
4
Philippe Chauve, Antonia Parera, and An Renckens, 'Agriculture, food and competition law: Moving
the borders' (2014) 5(5) Journal of European Competition Law & Practice 304, 313
5
Ibid.
6
Ibid., Jos Bijman and others, 'Support for farmers’ cooperatives' (European Commission 2012)
<http://ec.europa.eu/agriculture/sites/agriculture/files/external-studies/2012/support-farmers-
coop/fulltext_en.pdf> accessed 16 April 2016
creates efficiencies and does not jeopardise the competition in the sector to the detriment of
the consumer. Agreements that restrict the competition and lack any efficiencies in general
fall within the scope of Article 101 TFEU. Nevertheless, according to the Commission,
competition policy should not be perceived as an obstacle to cooperation between farmers but
as a tool that could help farmers in improving their production and marketing structures and
also improving their position in the supply chain, as long as a level-playing field where
operators have equal access to the benefits of a liberalised market is ensured.7

For the purpose of this thesis I will limit the scope to competition policy related issues
in agricultural markets. However, for the assessment of the whole food supply chain, it is
essential to assess and understand the interactions between other levels of the market, namely
wholesale, processing, manufacturing and retail; as mentioned above.

2.1. Distinctive nature of agriculture

Most governments of the industrialized world take the view that agriculture is not like
other areas of economic activity. It is special and as such merits special treatment to
encourage, assist and protect it. As noted by Nugent, five main arguments have been
advanced in support of this view, the relative importance of which has varied over time.8

The first argument which used to have a much higher importance before the CAP
reforms is based on the fact that agricultural prices are subject to considerable fluctuation if
they are not subject to public intervention and regulation. That is largely because, even with
modern farming techniques, agricultural supply is heavily dependent on the weather. There
are two reasons this lack of price stability can be perceived as a disadvantage. First, if prices
suddenly go up, inflation goes immediately up (given that food constitutes around 20% of the
budget of the average EU citizen). Second, if prices fall too low, farmers may not be able to
make an adequate living which would result in them being forced off the land. Those who
would be able to stay in farming would probably still have major difficulties as a result of
high debt loads on land and capital purchases.9

The second argument is that the EU would be potentially vulnerable to outside

pressures because of reliance on imports for vital foodstuffs. In the early years of the EC,

7
European Commission, Directorate General for Competition, 'The interface between EU competition
policy and the CAP' [2010] <http://ec.europa.eu/competition/sectors/agriculture/working_paper_dairy.pdf>
accessed 8 October 2016
8
Neill Nugent, The government and politics of the European Union: Seventh edition (7th edn, Palgrave
Macmillan 2010), p. 354
9
Ibid.
when the wounds of wartime were still not healed and shortages and the international trading
climate was strained this argument played an important part in encouraging a drive for greater
self-sufficiency.10 However, in the relatively calm international trading conditions we have
today, and with many of the foodstuffs produced in the EU being in surplus, it is an argument
that, though still heard, carries less relevance than it once used to.

The third argument states that because people must have food, insufficient domestic
production means the gap between output and demand has to be met by imports, with
potentially damaging consequences for the balance of payments. Moreover, since the
elasticity of the demand for food is rather low - up to necessity levels (as long as income
allows it, food will still be bought even if prices go up) the economic vulnerability of an
importing state is high. While this argument of balanced payments used to be important in
helping to underpin the CAP, it has not been so forceful since the early to mid-1970s when
Community prices became significantly higher than world prices and Community production
began to move significantly into surplus.11

The fourth argument is a social and an environmental one: it suggests that farmers
should be encouraged to stay on the land. As idealistic as it may sound, with pleas that a
populated countryside is something natural or the suggestion that management of the land is a
desirable goal in itself. However, there are also arguments that land that is not managed often
reverts to scrub which is inimical to bio-diversity, and that it is both undesirable and
potentially dangerous to allow farm incomes to deteriorate to the point that poor farmers and
agricultural workers are forced to move to the towns in search of employment that is often
non-existent.12

The fifth argument is that agriculture deserves a treatment with particular care because
it is intrinsically linked with food health and safety. A series of food scares in Europe since
the mid-1990s - The BSE/CJD crisis in particular – has obliged decision-makers to take a
broader view of what should be the content and priorities of agricultural policy.13

10
Ibid.
11
Ibid. p. 355
12
Ibid.
13
Ibid.
 These arguments support the premise that agriculture needs a special legal regime
even with regards to competition rules which and this was also confirmed by the CJEU in the
Milk Marque case with regards to CAP objectives.14

3. Legal framework
The purpose of this chapter will be to describe the current system of relevant rules
with regards to the relationship of the Common Agricultural Policy and EU Competition
Policy. Focus will be on the recent development of the CAP which was embodied in the new
CMO Regulation. This chapter will also elaborate on currently applicable derogations.

3.1. Competition policy

According to the Commission, the objective of the EU competition law is to ‘protect
competition on the market as a means of enhancing consumer welfare and of ensuring an
efficient allocation of resources.’15

EU competition law is contained within Part Three, Title VII, Chapter 1 of the TFEU,
which consists of Articles 101 to 109. The scope of this thesis deals with a specific set of
exceptions to competition rules applicable in agriculture. These exceptions allow certain
behaviour or cooperation of competitors that would not be allowed otherwise as they would
fall within the Articles 101 and 102 TFEU. For that reason, this chapter will limit the EU
competition law provisions to Articles 101 and 102 TFEU but it should be noted that
agriculture also has a specific set of rules in EU State Aid law.16

Article 101(1) TFEU belongs to rules applying to undertakings17 and prohibits

restrictive agreements, decisions by associations of undertakings and concerted practices
between undertakings in so far as they are capable of affecting trade between Member States.
The agreements and practices concerned include those which:

14
Case C-137/00 The Queen v The Competition Commission, Secretary of State for Trade and Industry
and The Director General of Fair Trading, ex parte Milk Marque Ltd and National Farmers' Union [2003] ECR
I-07975, as further assessed in the general derogations section of this thesis
15
Commission guidelines on the application of Article 81(3) of the Treaty, C101/97, para 13.
16
These specific rules include the agricultural de minimis Regulation, Agricultural Block Exemption
Regelation ("ABER"), Community Guidelines for State aid in the agriculture and forestry sector, as well as
achapter within the CMO Regulation dedicated to State aid
17
There is ample case law of CJEU (e.g. Case C-41/90 Klaus Höfner and Fritz Elser v Macrotron
GmbH [1991] ECR I-1979, Case C-180/98 Pavel Pavlov and Others v Stichting Pensioenfonds Medische
Specialisten [2000] ECR I-6451, Case C-309/99 J.C.J. Wouters and Others v Algemene Raad van de
Nederlandse Orde van Advocaten [2002] ECR I-1577, and Case C-475/99 Ambulanz Glöckner v Landkreis
Südwestpfalz [2001] ECR I-8089) on the notion of undertaking but for the purpose of this thesis I will be using
the definition of an undertaking as an entity engaged in economic activity (i.e. offering goods or services on the
market) regardless of its legal status or profitability.
 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.

The TFEU also provides for an exception to this rule as Article 101(3) TFEU states
that the prohibition contained in Article 101(1) TFEU may be declared inapplicable in cases
when agreements contribute to improving the production or distribution of goods or to
promoting technical or economic progress. Nevertheless, such agreements must allow
consumers a fair share of the resulting benefits, and must not impose restrictions which are
not indispensable to the attainment of these objectives. Furthermore, such agreements must
not enable the undertakings involved to eliminate competition in respect of a substantial part
of the products concerned.18

It is also worth noting that while some of the practices listed in Article 101(1) TFEU
may be justified on grounds of efficiencies gained for the attainment of the CAP objectives19,
the price fixing mechanisms have been difficult to justify. It is now for the CJEU to decide on
the justification of price fixing mechanisms in the recent Belgian endives case.20

While Article 101 deals with agreements, decisions and concerted practices of
undertakings that are harmful to competition, Article 102 is concerned with unilateral conduct
of undertakings with dominant position and whether their conduct is abusive. Such abuse may
in particular consist in:

a) directly or indirectly imposing unfair purchase or selling prices or other unfair

trading conditions;
b) limiting production, markets or technical development to the prejudice of
consumers;

18
As long as they do not exclude competition and all of the CAP objectives are pursued.
19
See sections Common Agricultural Policy and General derogations of this thesis.
20
This thesis contains a chapter dedicated to this case.
 c) applying dissimilar conditions to equivalent transactions with other trading
parties, thereby placing them at a competitive disadvantage;
d) making 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.

As noted earlier, there is no single, homogeneous food supply chain in Europe and
different sectors and Member States may have very different conditions. Abusive practices
provide a threat in situations of highly unbalanced bargaining power. For instance in the sugar
sector, there is usually one processor for thousands of producers and the threat of the
processor to abuse his monopsonist position may be offset by the scope of allowed
cooperation between producers.

3.2. Common Agricultural Policy

The CAP is one of the oldest common policies of the EU and has seen major changes
in the past decades. Up to the 1970s and 1980s, the main focus of the CAP was in market and
price support, and subsidies were granted to farmers proportionally to their production levels
which resulted in massive overproduction of agricultural products in Europe. These support
schemes resulted in so-called butter mountains, sugar hills and wine lakes which were
alleviated through export subsidies and restitutions which in turn drew criticism from third
countries and non-government organisations.21

However, it was essential to make the CAP a more sustainable policy which resulted
in a series of reforms which meant that farm subsidies have been largely decoupled from
production. This has been also reflected on the significantly decreasing expenditures of CAP
which it entails for the European Union budget, although a support for farmers to alleviate the
impact of the Russian embargo on certain agricultural products and of the difficult situation in
the dairy and pigmeat sector has been granted as extraordinary measures.22 The CAP
expenditures now also cover support for rural areas which does not affect exports.

21
Blockx J and Vandenberghe J, 'Rebalancing commercial relations along the food supply chain: The
agricultural exemption from EU competition law after regulation 1308/2013' (2014) 10(2) European Competition
Journal p.387.
22
European Union, 'EU budget for 2016' (Council of the European Union, 27 April 2016)
<http://www.consilium.europa.eu/en/policies/eu-annual-budget/2016/> accessed 2 October 2016.
 The CAP provisions are within Part Three, Title III of the TFEU (Articles 38-44). The
most important articles for the purpose of this thesis are Article 39 which defines the CAP
objectives and Article 42 which consider the relationship to EU competition policy.

As mentioned above, pursuant to Article 39 TFEU, the CAP objectives shall be:

a) to increase agricultural productivity by promoting technical progress and by

ensuring the rational development of agricultural production and the optimum
utilisation of the factors of production, in particular labour;
b) thus to ensure a fair standard of living for the agricultural community, in
particular by increasing the individual earnings of persons engaged in
agriculture;
c) to stabilise markets;
d) to assure the availability of supplies;
e) to ensure that supplies reach consumers at reasonable prices.

It is worth pointing out that letters b) (ensuring a fair standard of living for the
agricultural community) and e) (ensuring reasonable prices for consumers) of Article 39
TFEU may be problematic to attain at once as the first would imply raising prices for the sake
of the agricultural community while the latter suggest maintenance of reasonable prices.

Article 42(1) of the TFEU grants the Council and the European Parliament (the latter
after the Treaty of Lisbon) the power to determine the extent to which EU rules on
competition apply to the production and trade of agricultural products under the following
terms:

“The provisions of the Chapter relating to rules on competition shall apply to

production of and trade in agricultural products only to the extent determined by the
European Parliament and the Council within the framework of Article 43(2) and in
accordance with the procedure laid down therein, account being taken of the objectives set
out in Article 39.”

In light of this provision, the following two Regulations adopted by the Council and
governing the application of competition rules to the agriculture sector are currently in force.

3.3. Regulations 1184/2006 and 1308/2013

Council Regulation (EC) 1184/2006, of 24 July 2006, applying certain rules of
competition to the production of, and trade in, agricultural products ("Regulation
1184/2006"). Regulation 1184/2006 applies to agricultural products listed in Annex I to the
TFEU with the exception of the products covered by the Single CMO Regulation.23

The CMO Regulation is a complex piece of legislature, covering agricultural products

that are listed in Annex I of the TFEU (except fishery and aquaculture products) and
containing detailed provisions on market interventions, aid schemes for various sectors,
producer organizations (POs), associations of POs and inter-branch organisations (IPOs),
which may among other things collect and publish market data, forecast production and
prices, coordinate how products are placed on the market, explore potential export markets,
and seek ways to restrict the use of animal health or plant protection products.24

The CMO Regulation also addresses competition rules (and contains general, sector-
specific and crisis-oriented derogations from them) and exceptional measures for market
disturbances, animal diseases and health risks, sector-specific problems and severe market
imbalances and crisis reserves.

Previous versions of the CMO Regulation also contained a derogation from

competition rules for agreements that formed an integral part of a national market
organisation. However, Regulation 1308/2013 established a common organisation for many
agricultural products, so that most national market organisations lost their purpose and ceased
to exist.

3.4. General derogations within CMO Regulation

It is important to point out that the general derogations within CMO Regulation (i.e.
those within Article 209) have seen a fundamental change. Previously, it was the Commission
who (after consulting the Member States and hearing the undertakings) had the sole power
(subject to review by the CJEU) to determine in a form of a decision which agreements fulfil
the criteria of general derogations and are therefore exempted from the framework of
competition rules. However, the new CMO Regulation currently applies a principle of self-
assessment so the undertakings themselves have to decide, whether their agreements do fulfil
the criteria laid down in the CMO Regulation (for which they shall also bear the burden of
proof should any national or Union proceedings take action).

23
European Commission, Directorate General for Competition, 'The interface between EU competition
policy and the CAP' [2010] <http://ec.europa.eu/competition/sectors/agriculture/working_paper_dairy.pdf>
accessed 8 October 2016.
24
Modrall J, 'The battle between the European Union’s competition and agricultural policies' (Norton
Rose Fulbright, June 2016) <http://www.nortonrosefulbright.com/knowledge/publications/140631/the-battle-
between-the-european-unions-competition-and-agricultural-policies> accessed 4 October 2016.
3.4.1. First general derogation
Article 209 (1) first subparagraph CMO Regulation states that Article 101 TFEU does
not apply to agreements, decisions and practices which are necessary for the attainment of the
CAP objectives25.

In order to potentially apply this exception, it should be noted that the Courts have
followed a restrictive interpretation. Such approach therefore entails, that the objectives of the
CAP are already generally ensured by the means provided for by the rules applicable to a
common market organization. If a particular action of a single undertaking or an agreement
between undertakings is not expressly included among these means, it is generally not
deemed to be necessary for the attainment of the objectives of Article 39 TFEU. Such was the
reasoning followed by the General Court, for instance, in the Joined Cases T-70/92 and T-
71/92, Florimex, 26 in which it endorsed the prior practice of the Commission in this regard:

"147. Until now, the Commission has never found that an agreement between the
members of a cooperative which affects free access by non-members to agricultural
producers' channels of distribution is necessary for attainment of the objectives set out in
Article 39 of the Treaty.

148. Furthermore, the Commission's practice in earlier decisions has generally been
to conclude that agreements not included amongst the means indicated by the regulation
providing for a common organization in order to attain the objectives set out in Article 39 are
not 'necessary' within the meaning of the first sentence of Article 2(1) of Regulation No 26, as
observed by Advocate General Tesauro in his Opinion in Oude Luttikhuis, cited above (at p.
I-4480)."

However, the Court has decided that in order for this exception to apply, an additional
condition must be fulfilled which is that the agreement or action at issue must be necessary
for the attainment of all the objectives of Article 39 TFEU. If that is not the case, the
exception provided for by Article 209 would not be applicable. Therefore, the General Court
established in the Joined Cases T-70/92 and T-71/92, Florimex, that:

"153. Finally, as the applicants have submitted, it is settled case-law that the first
sentence of Article 2(1) of Regulation No 26 applies only if the agreement in question is

25
CAP objectives are listed within chapter “Common Agricultural Policy”.
26
Joint Cases T-70/92 and T-71/92 Florimex BV and Vereniging van Groothandelaren in
Bloemkwekerijprodukten v Commission [1997] ECR II-00693.
conducive to attainment of all the objectives of Article 39 (see Frubo v Commission, cited
above, paragraphs 22 to 27, and Oude Luttikhuis, cited above, paragraph 25). It follows that
the Commission's statement of reasons must show how the agreement at issue satisfies each of
the objectives of Article 39. In the event of a conflict between those sometimes divergent
objectives, the Commission's statement of reasons must, at the very least, show how it was
able to reconcile them so as to enable the first sentence of Article 2(1) of Regulation No 26 to
be applied."

This attempt to reconcile all the objectives of Article 39 TFEU is found for instance in
the French beef case,27 where the Commission considered that a price fixing cartel between
French farmers and slaughterhouse federations could only fulfil one of these objectives
(ensuring a fair standard of living for farmers) but not the rest of the goals set down under the
above provision. The reasoning of the Commission was endorsed by the General Court in the
28
Joined Cases T-217/03 and T-245/03, FNCBV, in which it stated that: "In the light of the
foregoing, it must be found that the disputed agreement can be regarded as necessary only in
relation to the objective of ensuring a fair standard of living for the agricultural community.
On the other hand, the agreement is likely at least to jeopardise the setting of reasonable
prices for supplies to consumers. Lastly, the agreement had no connection with, and was
therefore all the more unnecessary for, the stabilisation of markets, ensuring the availability
of supplies and increasing agricultural productivity. Therefore, in view of the case-law
referred to in paragraph 199 above, the Court considers that the Commission did not err in
finding that bringing those different objectives into balance did not justify the conclusion that
the derogation provided for by the first sentence of Article 2(1) of Regulation No 26 was
applicable in the present case."

From an economic point of view, it is not possible to achieve all the five objectives set
out in Article 39 TFEU simultaneously, as "fair standards of living for the agricultural
community" may conflict with "reasonable prices to consumers". However, the five objectives
can be met if there are sufficient efficiencies or productivity gains that are passed onto
consumers in the form of reasonable prices, while entailing higher farming incomes.29

27
French beef (Case COMP/C.38.279/F3) Commission Decision 2003/600/EC [2003] OJ L 209/12.
28
Joint Cases T-217/03 and T-245/03 FNCBV and Others v Commission [2006] ECR II-04987.
29
European Commission, Directorate General for Competition, 'The interface between EU competition
policy and the CAP' [2010] <http://ec.europa.eu/competition/sectors/agriculture/working_paper_dairy.pdf>
accessed 8 October 2016.
 As the Commission and the Courts have interpreted this exception under Article 209
CMO, it would seem difficult to apply it to arrangements concluded between farmers in the
form of POs or other form of associations, in which price mechanisms were to be agreed.
Such agreements may indeed respond to the need of ensuring a fair standard of living for
farmers, but the rest of the objectives foreseen under Article 39 of the TFEU would also have
to be met.30

3.4.2. Second and third general derogations

Article 209 (1) second subparagraph CMO Regulation allows agreements of farmers,
farmers' associations, associations of such associations and recognised POs and APOs which
concern the production or sale of agricultural products or the use of joint facilities for the
storage, treatment or processing of agricultural products and which do not impair CAP
objectives. Such agreements will not be declared compatible with Union rules, if they entail
obligations to charge an identical price or exclude competition.

In the previous versions of the CMO Regulation, it could be considered that these
requirements are a particular example of the previous paragraphs, but the CJEU has
considered this and came to a conclusion that it has an independent meaning with respect to
the two prior exceptions and therefore amounts to 3rd exception.31 The previous version of this
paragraph also required the undertakings to belong to a single Member State but this
requirement has been removed.

So in order to apply this exception, three cumulative conditions must be met:

1) The agreements must be concluded between farmers, farmers' associations or

associations of farmers' associations.
2) The agreements must concern the production or sale of agricultural products
(the terms used by the Preamble32 of the Single CMO Regulation in this regard
are "joint production or marketing of agricultural products") or the use of joint
facilities for the storage, treatment or processing of agricultural products, and
under which there is no obligation to charge identical prices.

30
Ibid.
31
Joint Cases C-319/93, C-40/94 and C-224/94 Hendrik Evert Dijkstra v Friesland (Frico Domo)
Coöperatie BA and Cornelis van Roessel and others v De coöperatieve vereniging Zuivelcoöperatie Campina
Melkunie VA and Willem de Bie and others v De Coöperatieve Zuivelcoöperatie Campina Melkunie BA [1995]
ECR I-04471, para 17.
32
Single CMO Regulation, Preamble, Para. 174.
 3) The agreements may not exclude competition or jeopardize the objectives of
the CAP.

However, so far this exception seems to have been of very minor application as the
case law or Commission practice in which its potential application has been analysed is very
limited. No particular decision or case has been found in this regard in which it has been fully
accepted.33 Some of the underlying reasons taken into account in this regard have been the
following:

The first reason would be that the agreement at issue involves not only farmers,
farmers' associations or associations of farmers' associations but also third parties or trade
associations. If there are third parties (who do not fall into the categories of farmers, farmers'
associations or associations of farmers' associations) participating on the agreement at issue,
the latter would not qualify for being exempted.34

This has been decided by the Commission in its Decision in the Meldoc case35: which
was dealing with an analysis of a horizontal agreement between four dairy cooperatives and
one private company introducing a quota system, consultations on prices and mechanisms to
restrict imports from other Member States to the Netherlands. The Commission came to a
conclusion that this exception could not be applicable to the agreement at issue to the extent
that a private company (which was not an association of farmers) was also involved: "(55)
(…) Since ML is a private company and not an association of farmers, it cannot be
maintained that the Meldoc agreement is covered by the exception provided for in the second
sentence of Article 2 (1)."

The Commission came to a similar conclusion in its Decision in the

Milchförderungsfonds case.36 In this scenario, the Commission refused to recognise the
exception for the arrangements at issue - management of a private fund aimed at promoting
the quality and sales of milk and dairy products - had been implemented by several
associations of farmers' trade associations which could not qualify as farmers'

33
European Commission, Directorate General for Competition, 'The interface between EU competition
policy and the CAP' [2010] <http://ec.europa.eu/competition/sectors/agriculture/working_paper_dairy.pdf>
accessed 8 October 2016.
34
Ibid.
35
MELDOC (Case IV/31.204) Commission Decision 86/596/EEC [1986] OJ L 348/50.
36
Milchförderungsfonds (Case IV/28.930) Commission Decision 85/76/EEC [1984] OJ L 35/3.
associations37 as such: "(22) (…) The association formed by the German Farmers' Union and
German Raiffeisen Association and their respective Land associations and the Central
Association of Private Dairies to administer the MFF is an association of trade associations
serving the common economic interests of its members. It is not, however, an association of
farmers' associations within the meaning of the second sentence of Article 2 (1) which, like
farmers' cooperatives, carry on behalf of their members common commercial activities in the
field of the production or sale of agricultural products or he use of joint facilities for the
storage, treatment or processing of agricultural products."

The second reason would be that the restriction of competition at issue - although
coming from a decision of a farmers' association - is then included in a contract with a third
party which becomes subject to such restriction.38 In its Decision in the Bloemenveilingen
Aalsmeer case,39 the Commission has decided to reject the application of this exemption
because when analysing the compatibility of certain auction rules and charges adopted by a
cooperative society of plant and flower growers, it stated that: "152. The exception provided
for in the second sentence of Article 2(1) applies only to agreements between farmers and/or
their associations. Although the Auction Rules and the Scale of Charges are decisions of a
farmers' association, the restriction of competition stems from the fact that wholesalers
subject themselves to these provisions by contract and thus individual agreements come into
being between a farmers' association and wholesalers."

The third argument would be that the practices including price fixing mechanisms as
was the conclusion of the CJEU in the Case Oude Luttikhuis,40 in which it the Court stated
that: "28. The third derogation is subject to three cumulative conditions. For the derogation
to be applied, it must be confirmed, firstly, that the agreements in question concern
cooperative associations belonging to a single Member State, secondly that they do not cover
prices but concern rather the production or sale of agricultural products or the use of joint
facilities for the storage, treatment or processing of such products, and thirdly that they do
not exclude competition or jeopardize the objectives of the common agricultural policy."

37
European Commission, Directorate General for Competition, 'The interface between EU competition
policy and the CAP' [2010] <http://ec.europa.eu/competition/sectors/agriculture/working_paper_dairy.pdf>
accessed 8 October 2016.
38
Ibid.
39
Bloemenveilingen Aalsmeer (Case IV/31.379) Commission Decision 88/491/EEC [1988] OJ L
262/27.
40
Case C-399/93 H. G. Oude Luttikhuis and Others v Verenigde Coöperatieve Melkindustrie Coberco
BA [1995] ECR I-04515.
 The Commission came to a similar conclusion in the aforementioned French beef
case41 and for the very same reasons refused that the exception would be granted to an
agreement between several federations of farmers and slaughterers including a minimum
purchase price:

"137. (…) The exception at (c) is excluded twice over: the agreement involves parties
other than farmers, namely the slaughterers' federations; and it does indeed impose an
obligation to charge identical prices."

The partial conclusion which is based on the aforementioned decisions would be, that
the relevance of the second subparagraph of Article 209 CMO to assess POs or other forms of
associations between farmers seemed to be very limited. In many cases the agreements
involved in practice farmers trade associations or third parties other than farmers, which
would automatically exclude the application of the second subparagraph of Article 209 CMO
(e.g. Meldoc and also French beef). In addition, if the agreement involves price fixing
arrangements, the application of this derogation is excluded as was noted in Cases Oude
Luttikhuis and French beef.

It is also necessary to note that the aforementioned decisions were dealing with a
situation where the Commission granted the exceptions. This has however been changed and
the current CMO Regulation requires farmers to self-assess and see for themselves whether
their conduct would be exempted based on Article 209 CMO Regulation.

Also, the implication that the potential restriction of competition between farmers
would be included in subsequent individual contracts concluded with 3rd parties would also
give another reason not to apply this exemption.

In cases where the agreements between farmers would not meet the requirements laid
down by Article 209 of the Single CMO Regulation there would still be a requirement to
assess them within the framework of Article 101(1) TFEU in order to determine whether they
are capable of restricting of competition and affecting trade between Member States. If such is
the case, it would thus be necessary to analyse whether these agreements could still benefit
from a block or individual exemption under Article 101(3) of the TFEU.

41
French beef (Case COMP/C.38.279/F3) Commission Decision 2003/600/EC [2003] OJ L 209/12.
3.4.3. Agreements of recognised Interbranch organisations
Article 210 CMO Regulation exempts certain activities of recognised Interbranch
organisations from the competition rules subject to a number of conditions.42 Such agreements
are to be notified by the IBO to the European Commission, who within a period of two
months after complete receipt of all details either informs the IBO that there are no objections
or adopts a decision setting out its findings that the agreements are not compatible with Union
rules.

3.5. Crisis derogations

Article 222 CMO Regulation enables the Commission to adopt implementing acts to
the effect that Article 101 (1) TFEU is not to apply – for a period of up to 6 months - to
agreements and decisions of recognised POs, APOs and Interbranch Organisations, provided
that these agreements do not undermine the proper functioning of the internal market, strictly
aim to stabilise the sector concerned.

These measures will only be allowed for the categories of market withdrawal,
transformation and processing, storage by private operators, joint promotion, agreements on
quality requirements, joint purchasing of inputs necessary to combat the spread of pests and
diseases and temporary planning of production.

The significance of this Article lies in the fact that it goes beyond the standard
exemption for producer organisations, associations of producer organisations and interbranch
organisations because it allows measures which restrict competition such as market
withdrawal during periods of market crisis. The Commission and Member States could
previously finance the withdrawal of surpluses during a period of market disruption until a
new market equilibrium was found.43 Currently, POs, their associations, and IBOs can do this
without violating competition rules. However, the list of permitted activities still does not
include collective bargaining or price-fixing activities.44

42
Article 210 (4) CMO Regulation states that agreements, decisions or concerted practices shall be
declared incompatible with the Union rules if they may lead to the partitioning of markets within the Union, may
affect the sound operation of the market organisation, may create distortions of competition which are not
essential to achieving the objectives of the CAP pursued by the interbranch organisation activity, entail the fixing
of prices or the fixing of quotas, may create discrimination or eliminate competition in respect of a substantial
proportion of the products in question.
43
Alan Matthews, 'Competition issues in the single CMO regulation' (CAP Reform, 26 March 2014)
<http://capreform.eu/competition-issues-in-the-single-cmo-regulation/> accessed 3 March 2016.
44
Ibid., also following the Joint Cases T-217/03 and T-245/03 FNCBV and Others v Commission
[2006] ECR II-04987.
 The Commission can only introduce this suspension of the normal rules if it has
already adopted measures to deal with a general market disturbance, if products have been
bought into public intervention or if aids for private storage have been introduced. The
suspension can only last for a six month period, renewable for one further period of six
months.45

3.6. Sectoral derogations

3.6.1. Beef, veal, olives and arable crops

Following the 2013 CAP reform, the CMO Regulation introduced a set of efficiency
based derogations from competition rules for the sale of olive oil, beef and veal, and arable
crops. At the end of 2015, the Commission has published Guidelines on joint selling of olive
oil, beef and veal, and arable crops with the goal of helping farmers assess whether they meet
the criteria set in Articles 169, 170 and 171 of the CMO Regulation. The Guidelines aim to
support European farmers by clarifying how they can, under certain conditions, cooperate to
jointly sell olive oil, beef and veal, and arable crops without breaching EU competition rules.
These markets are worth more than €80 billion annually.46

These Guidelines are about three efficiency-based derogations which allow producers
of olive oil, beef and veal, and arable crops to jointly sell and set prices, volumes and other
terms through recognised organisations47, if they fulfil certain conditions of Articles 169, 170
and 171 of the CMO Regulation. In particular:

 such organisations have to make farmers significantly more efficient by

providing them with supporting activities other than sales (e.g. storage,
transport, distribution); and
 the volumes marketed by a given organisation must not exceed certain
thresholds (20% of the relevant market for olive oil and 15% of the national
market for beef and veal, and arable crops).

The purpose of these new Guidelines is not only to help farmers to assess and comply
with these requirements but they also aim to help competition authorities and judicial

45
Article 222(2) CMO Regulation.
46
European Commission, 'Antitrust: new commission guidelines on joint selling of olive oil, beef and
veal, and arable crops' (2015) <http://europa.eu/rapid/press-release_IP-15-6187_en.htm> accessed 17 April
2016.
47
The joint selling activities need to be carried out by producer organisations or associations of
producer organisations formally recognised by national authorities.
authorities in the Member States to apply the new rules. In particular, they provide a clear
definition/indication of the type of activities that can create the significant efficiencies
required to benefit from the derogation and give specific examples of situations in which such
activities can create significant efficiencies; give guidance on how to calculate the volumes
marketed by farmers' organisations and how to check that they do not exceed the thresholds,
taking into account notably natural variations over time; explain how exceptional
circumstances, e.g. a natural disaster, can be taken into account when calculating the
volumes marketed by farmers’ organisations; and clarify the situations in which the national
competition authorities and the Commission may apply the safeguard clause foreseen by the
CMO Regulation. This safeguard clause allows competition authorities, in exceptional
circumstances, to decide that joint sales of a farmers’ organisation should be either
reassessed or should not take place if the overall market is negatively affected.48

In comparison to the general derogation, these specific derogations have a narrower

scope, as they apply only to contract systems and related activities for olive oil, beef and veal
and certain arable crops. They also only apply to the activities of POs. They do not apply to
inter-branch organizations or other undertakings that may benefit from the general derogation.
However, the conditions to apply the specific derogations may be easier to meet, and the
assessment methods and notifications give POs greater certainty.

3.6.2. Milk
Following the difficulties on the milk market in 2009, the Commissioner for
Agriculture and Rural Development, decided to establish a High Level Expert Group on Milk
(HLG)49 with the purpose of discussing mid-term and long-term arrangements for the dairy
sector given the expiry of dairy quotas on 1 April 2015. This establishment has led to the
introduction of “Milk Package” in 2012 and has been incorporated in the revised CMO
Regulation. The Milk Package was a very specific set as the characteristics of the diary sector
are very different from other sectors (farmers are not easily able to switch production as with
regards to crops), and diary went through an end of quota period and several crises. As these
circumstances are not easily applicable to other agricultural sectors (perhaps sugar which is
going through transition into post-quota system as well), it is not possible to address the Milk

48
European Commission, 'Antitrust: new commission guidelines on joint selling of olive oil, beef and
veal, and arable crops' (2015) <http://europa.eu/rapid/press-release_IP-15-6187_en.htm> accessed 17 April
2016.
49
Report of the High Level Group on Milk, available at
http://ec.europa.eu/agriculture/markets/milk/hlg/report_150610_en.pdf.
Package in more detail due to the scope of this thesis. Milk has however had ample attention
both in media and in academic writings.

3.6.3. Fruits and vegetables

According to Article 33 (3) (f) of CMO Regulation, market withdrawal of products by
POs is allowed for cases of crisis prevention and management in the sector of fruits and
vegetables.

3.7. General derogation of Article 101(3) TFEU

Practices that do not meet the conditions for exemption under the CMO Regulation,
still may qualify for exemption under Article 101(3) TFEU. When agreements are imputed to
undertakings from the agricultural or the food sector on the basis of Article 101(1), the
applicability of the exemption of Article 101(3) has to be sought.50

Such has been the approach taken by the Commission which, in cases of conclusion
that Article 209 CMO was not applicable, has also analyzed whether the agreement at issue
may fall under the scope of application of Article 101(1) TFEU and in cases it would whether
it could benefit from the exception provided for by Article 101(3) such was the approach
taken in for example in Milchförderungsfonds and Meldoc cases. Similarly, the Court of
Justice has concluded in DLG Case,51 that if the predecessor of CMO Regulation did not
apply, it has ruled that Article 101 remained fully applicable.

Article 101(3) establishes applicability conditions wider than those of the CMO
Regulation52, which are being interpreted in a very narrow fashion. On the basis of Article
101(3), the Commission may find that the conditions to apply the exception are met which in
practice means that, the Commission and the CJEU check whether the agreements are
necessary, if the consumer interest is preserved, and whether the agreement leaves sufficient
competition.53

50
Article 101(3) TFEU has already been addressed within section 3.1 of this thesis.
51
Case C-250/92 Gøttrup-Klim e.a. Grovvareforeninger v Dansk Landbrugs Grovvareselskab
AmbA [1994] ECR I-05641.
52
which refers exclusively to CAP objectives mentioned in Article 39 TFEU.
53
Del Cont C, Bodiguel L, and Jannarelli A, 'EU Competition Framework: Specific Rules for the Food
Chain in the New CAP' (2012) <http://www.europarl.europa.eu/RegData/etudes/note/join/2012/474541/IPOL-
AGRI_NT(2012)474541_EN.pdf> accessed 2016.
 Certain practices such as price-fixing agreements and agreements limiting or
controlling production are excluded from Article 101(3), as with the other exceptions.54 These
agreements and practices have as their “object” the restriction of competition and as such their
actual or potential effect on the competition is not being examined. This reasoning was
followed in FNCBV55 and “Irish beef”56 cases and concludes that concerted practices aiming
to reduce production capacity and to fix prices are understood without taking into account the
agricultural context or the particular situation of economic crisis. The exemption of Article
101(3) is interpreted as restrictive as any agricultural exemption.57

3.8. Belgian endive case

The CJEU might shed some light on the conflicting policies with its decision on
Belgian endive case which is expected sometime in 2017.

The Belgian endive case originated in practices adopted by French producers of

Belgian endive between January 1998 and March 2012. At that time, two predecessors of the
CMO Regulation were in effect. The practices in question included minimum price-setting
mechanism and managing production volumes in order to maintain these prices by being able
to withdraw endives from the market as a form of price support.58

The national competition authority of France imposed fines for violation of the EU
competition rules, but the French Court of Appeal annulled the fine on the ground that EU
competition rules did not apply to the price mechanisms implemented by the endive
producers. However, the French Court of Appeal was unclear as with regard to these
mechanisms and whether they were permitted under the general derogations set out in the
previous versions of the CMO Regulation, under the specific derogations or under a national
regime that was in effect at the time.59

54
Case C-123/83 Bureau national interprofessionnel du cognac v Guy Clair [1985] ECR 00391.
55
Joint Cases T-217/03 and T-245/03 FNCBV and Others v Commission [2006] ECR II-04987.
56
Case C-209/07 Competition Authority v Beef Industry Development Society Ltd and Barry Brothers
(Carrigmore) Meats Ltd. [2008] ECR I-08637.
57
Catherine Del Cont, Luc Bodiguel, and Antonio Jannarelli, 'EU Competition Framework: Specific
Rules for the Food Chain in the New CAP' (2012)
<http://www.europarl.europa.eu/RegData/etudes/note/join/2012/474541/IPOL-
AGRI_NT(2012)474541_EN.pdf> accessed 2016.
58
Modrall J, 'The battle between the European Union’s competition and agricultural policies' (Norton
Rose Fulbright, June 2016) <http://www.nortonrosefulbright.com/knowledge/publications/140631/the-battle-
between-the-european-unions-competition-and-agricultural-policies> accessed 4 October 2016.
59
Ibid.
 On appeal, the European Commission took the unusual step of intervening before the
French Supreme Court to challenge the Court of Appeal’s approach. 60 The ambiguity of the
Court of Appeal decision led the Commission to review each of the possible grounds in detail.
The Commission argued that the general derogations did not apply. In particular, the
Commission stated that the price-setting mechanisms were not necessary to attain all of the
CAP objectives within Article 39 TFEU and that these mechanisms related purely to price
(and were in that sense a “by object” restriction). Also, the CMO Regulation’s predecessors
required prior Commission approval for the general derogation to apply, and the producers
had never sought or obtained the Commission’s approval. The Commission also argued that
the predecessors of the specific derogations could not justify the price fixing mechanisms as
those were not among the specific permitted conduct and producers could not extend the
application of the specific derogations to other conduct by analogy. The Commission also
argued that setting minimum prices clearly exceeds the legitimate authority of the association
of producer organizations.61

The French Supreme Court requested a preliminary ruling62 and referred two
questions, about the interaction between the EU competition rules and the CAP, to the CJEU.
The French court asked whether agreements and concerted practices that would otherwise be
illegal under Article 101(1) TFEU could be permitted if they are “linked to” the
responsibilities of producer organizations under the common organization of the market in
accordance with the CAP, even if they are not covered by any of the general derogations
provided for in the predecessors of the CMO Regulation.

If the answer to the first question would be positive, the French Supreme Court asked
whether producer organisations can fix minimum prices, coordinate on the quantities placed
on the market or exchange strategic information, if these activities are aimed at the CAP
objectives of stabilising producer prices and adjusting production to demand.

The European Commission and Member States are expected to argue strongly before
the CJEU that the derogations to the EU’s competition rules set out in the CMO Regulation
must be interpreted narrowly, and no exceptions from those competition rules outside the

60
Ibid.
61
Ibid.
62
Jan Blockx, 'Belgian endives on the frontline for price fixing by farmers' (Kluwer Competition Law
Blog, 15 December 2015) <http://kluwercompetitionlawblog.com/2015/12/15/belgian-endives-on-the-frontline-
for-price-fixing-by-farmers/> accessed 5 April 2016
derogations set out in the CMO Regulation should be recognized.63 The CJEU’s approach to
these issues will create a precedent in this area. If the CJEU finds that the CAP’s objectives
can override the EU competition rules, even outside the relatively narrow scope of the CMO
Regulation, then the case may lead to a period of enhanced cooperation and coordination
among EU agricultural producers.64

4. Conclusion
The current state of affairs between the EU Competition policy and the Common
Agricultural Policy is that the objectives of the CAP take precedence over those in relation to
competition policy. This does not mean that farmers would be allowed to cartelise as they will
and the agricultural sectors would not affected by competition policy at all - according to the
Court, the application of competition rules in the agricultural sector can be limited in a
specific and targeted way but not excluded entirely.

The CMO Regulations have always foreseen exemptions from the competition rules in
certain circumstances, however the Commission and the Court have expressed their views that
some practices (such as price fixing mechanisms) have proven to be difficult to justify as they
don’t seem to pass the necessity test for attainment of CAP objectives. In that regard, it
remains to be seen how the CJEU decides on the Belgian Endives case and what further
implications will it have for the future of this relation. My prediction is that the Court will
follow the ‘safe path’ in the form of the opinion of the Commission and decide that price
fixing mechanism present in the Belgian Endives case does not fall under the scope of
agricultural derogations from competition rules, or else it could present an unwanted
precedent that would induce a shift in interpretation of competition rule infringements.

It is a difficult task to assess the derogations altogether as some of the sector specific
derogations come with a clear guidance which will help the producers assess whether they
meet the criteria or not while others do not provide any such guidance. In that respect the new
Guidelines on beef, veal, olives and arable crops should be welcome as a step in the right
direction for hopefully more to come (guidelines on sugar would be appreciated in order to
prevent a possible post-quota crisis). It is however necessary to note, that since the exceptions

63
Ibid.
64
Modrall J, 'The battle between the European Union’s competition and agricultural policies' (Norton
Rose Fulbright, June 2016) <http://www.nortonrosefulbright.com/knowledge/publications/140631/the-battle-
between-the-european-unions-competition-and-agricultural-policies> accessed 4 October 2016
covered by these Guidelines only apply to producer organisations, a single producer is left
behind.

It should also be noted that unless the Commission and Court change their
interpretation of the general derogations of CMO Regulation, they will continue to have a
marginal use as the amount of criteria (some of which may appear conflicting) the agreements
need to fulfil and more importantly, the undertakings and producer organisations need to self-
assess is immense. In that regard, the concluding remark would be that the general
derogations within the CMO Regulation are currently barely applicable as the agreements that
are being targeted by them need to pass the ‘necessity’ test while proving that all CAP
objectives are attained. In that regard, an update of CAP objectives accompanied by guidance
for the self-assessing producers could become the trigger that would ‘make the general
derogations great again’ (if they ever were).
Bibliography and other sources

Bibliography:

Barnard C and Peers S (eds), European Union law (1st edn, Oxford University Press
2014)

Bijman J and others, 'Support for farmers’ cooperatives' (European Commission 2012)
<http://ec.europa.eu/agriculture/sites/agriculture/files/external-studies/2012/support-farmers-
coop/fulltext_en.pdf> accessed 16 April 2016

Blockx J, 'Belgian endives on the frontline for price fixing by farmers' (Kluwer
Competition Law Blog, 15 December 2015)
<http://kluwercompetitionlawblog.com/2015/12/15/belgian-endives-on-the-frontline-for-
price-fixing-by-farmers/> accessed 5 January 2016

Blockx J and Vandenberghe J, 'Rebalancing commercial relations along the food

supply chain: The agricultural exemption from EU competition law after regulation
1308/2013' (2014) 10(2) European Competition Journal 387, 401

Bureau J-C and Mahé L-P, 'CAP reform beyond 2013: An idea for a longer view'
(Notre Europe 2008) <http://www.institutdelors.eu/media/etude64-cap-propositions-
en_01.pdf?pdf=ok> accessed 2016

Craig P and de Búrca G, EU law: Text, cases, and materials (5th edn, Oxford
University Press 2011)

Del Cont C, Bodiguel L, and Jannarelli A, 'EU Competition Framework: Specific

Rules for the Food Chain in the New CAP' (2012)
<http://www.europarl.europa.eu/RegData/etudes/note/join/2012/474541/IPOL-
AGRI_NT(2012)474541_EN.pdf> accessed 2016

Dragoi A-E and Iordache L, 'Antitrust Policy Impact On EU’s Agricultural Sector'
(2016) 8(1) Knowledge Horizons - Economics 40, 45

European Commission, 'Antitrust: New Commission Guidelines On Joint Selling Of

Olive Oil, Beef And Veal, And Arable Crops' (2015) <http://europa.eu/rapid/press-release_IP-
15-6187_en.htm> accessed 17 April 2016

European Commission, Directorate General for Agriculture and Rural Development,

'The Common Agricultural Policy after 2013 – Public Debate' (2010)
<http://ec.europa.eu/agriculture/cap-post-2013/debate/report/summary-report_en.pdf>
accessed 2016

European Commission, Directorate General for Agriculture and Rural Development,

'Overview of CAP Reform 2014-2020' (2013) <http://ec.europa.eu/agriculture/policy-
perspectives/policy-briefs/05_en.pdf> accessed 2016

European Commission, Directorate General for Competition, 'The interface between

EU competition policy and the CAP' [2010]
<http://ec.europa.eu/competition/sectors/agriculture/working_paper_dairy.pdf> accessed 8
October 2016

European Union, 'EU budget for 2016' (Council of the European Union, 27 April
2016) <http://www.consilium.europa.eu/en/policies/eu-annual-budget/2016/> accessed 2
October 2016

EY, Cambridge Econometrics Ltd., and Arcadia International, 'The economic impact
of modern retail on choice and innovation in the EU food sector' (Publications Office of the
European Union 2014) <http://ec.europa.eu/competition/publications/KD0214955ENN.pdf>
accessed 2016

Ezrachi A, 'Unchallenged Market Power? The Tale of Supermarkets, Private Labels,

and Competition Law' (2010) 33(2) World Competition 257, 274

Geradin D, Petit N, and Layne-Farrar A, EU competition law and economics (1st edn,
Oxford University Press 2012)

Hill B, Understanding the Common Agricultural Policy (1st edn, Earthscan 2012)

Chauve P, Parera A, and Renckens A, 'Agriculture, food and competition law: Moving
the borders' (2014) 5(5) Journal of European Competition Law & Practice 304, 313

Matthews A, 'Competition issues in the single CMO regulation' (CAP Reform, 26

March 2014) <http://capreform.eu/competition-issues-in-the-single-cmo-regulation/>
accessed 3 March 2016

Matthews A, 'Did we really need the milk package?' (CAP Reform, 3 October 2013)
<http://capreform.eu/did-we-really-need-the-milk-package/> accessed 3 March 2016

McGowan F, 'Competition Policy' in Helen Wallace and William Wallace (eds),

Policy-making in the European Union (4th edn, Oxford University Press 2000) 115, 148
 Modrall J, 'The battle between the European Union’s competition and agricultural
policies' (Norton Rose Fulbright, June 2016)
<http://www.nortonrosefulbright.com/knowledge/publications/140631/the-battle-between-
the-european-unions-competition-and-agricultural-policies> accessed 4 October 2016

Motta M, Competition policy: Theory and practice (1st edn, Cambridge University
Press 2004)

Nugent N, The government and politics of the European Union: Seventh edition (7th
edn, Palgrave Macmillan 2010)

Reich A, 'The Agricultural Exemption in Antitrust Law: A Comparative Look at the

Political Economy of Market Regulation' (2007) 42(843) Texas International Law Journal
843, 874

Rieger E, 'The Common Agriculture Policy' in Helen Wallace and William Wallace
(eds), Policy-making in the European Union (4th edn, Oxford University Press 2000) 179,
210

Vandenberghe J, 'The Single Common Market Organization Regulation' in Joseph A.

McMahon and Michael N. Cardwell (eds), Research handbook on EU agriculture law (1st
edn, Edward Elgar Publishing 2015) 62, 85

Whish R and Bailey D, Competition law (7th edn, Oxford University Press 2012)

Decisions of the European Court of Justice:

Case C-123/83 Bureau national interprofessionnel du cognac v Guy Clair [1985]

ECR 00391

Case C-41/90 Klaus Höfner and Fritz Elser v Macrotron GmbH [1991] ECR I-1979

Case C-250/92 Gøttrup-Klim e.a. Grovvareforeninger v Dansk Landbrugs

Grovvareselskab AmbA [1994] ECR I-05641

Case C-399/93 H. G. Oude Luttikhuis and Others v Verenigde Coöperatieve

Melkindustrie Coberco BA [1995] ECR I-04515

Joint Cases C-319/93, C-40/94 and C-224/94 Hendrik Evert Dijkstra v Friesland
(Frico Domo) Coöperatie BA and Cornelis van Roessel and others v De coöperatieve
vereniging Zuivelcoöperatie Campina Melkunie VA and Willem de Bie and others v De
Coöperatieve Zuivelcoöperatie Campina Melkunie BA [1995] ECR I-04471

Joint Cases T-70/92 and T-71/92 Florimex BV and Vereniging van Groothandelaren
in Bloemkwekerijprodukten v Commission [1997] ECR II-00693

Case C-180/98 Pavel Pavlov and Others v Stichting Pensioenfonds Medische

Specialisten [2000] ECR I-6451

Case C-475/99 Ambulanz Glöckner v Landkreis Südwestpfalz [2001] ECR I-8089

Case C-309/99 J.C.J. Wouters and Others v Algemene Raad van de Nederlandse Orde
van Advocaten [2002] ECR I-1577

Case C-137/00 The Queen v The Competition Commission, Secretary of State for
Trade and Industry and The Director General of Fair Trading, ex parte Milk Marque Ltd and
National Farmers' Union [2003] ECR I-07975

Joint Cases T-217/03 and T-245/03 FNCBV and Others v Commission [2006] ECR II-
04987

Case C-209/07 Competition Authority v Beef Industry Development Society Ltd and
Barry Brothers (Carrigmore) Meats Ltd. [2008] ECR I-08637

Decisions of the European Commission:

Milchförderungsfonds (Case IV/28.930) Commission Decision 85/76/EEC [1984] OJ

L 35/3

MELDOC (Case IV/31.204) Commission Decision 86/596/EEC [1986] OJ L 348/50

Bloemenveilingen Aalsmeer (Case IV/31.379) Commission Decision 88/491/EEC

[1988] OJ L 262/27

French beef (Case COMP/C.38.279/F3) Commission Decision 2003/600/EC [2003]

OJ L 209/12

Friesland Foods/Campina (Case COMP/M.5046) [2008] OJ C 75/21

Legislation of the European Union:

Consolidated Version of the Treaty on European Union [2012] OJ C 326/47

 Council Regulation (EC) 1184/2006 of 24 July 2006 applying certain rules of
competition to the production of, and trade in, agricultural products [2006] OJ L 214

European Parliament and Council Regulation European (EU) 1308/2013 of

17 December 2013 establishing a common organisation of the markets in agricultural
products [2013] OJ L 347/671