EU COMPETITION LAW:

ART 101 TFEU

K. Gogolová, N. Krutišová, T. Malý 17.4.2024

 GENERAL INFORMATION
 Member states want to protect their markets with:

→ national legislation
→ restrictive business practises

 This is limited mainly by Articles 30, 34-36 and

110 TFEU

 EU → harmonization of competition (no

inconsistency)
ARTICLE 101 - INTRODUCTION
 Prohibition of anti-competitive business practices
 Goal: no market distortion
 Example:
 Company A and Company B
 They sell electric cars
 They have 80 % market share
 They divide market and have same (high) prices
 Breach of competitive market → harm for consumers and business efficiency
 NOT POSSIBLE !!! → legal mechanisms

 European Commission
 National competition authorities
 National courts (Regulation 1/2003)
 C-41/90 HÖFNER AND ELSER V
MACROTRON GMBH
 Definition of an undertaking
o It is every entity engaged in an economic activity, regardless of the legal
status of the entity and the way in which it is financed

 This means:

1. An undertaking is a subject
2. The term undertaking is broad
3. Its ownership of capital, method of formation etc. Is irrelevant
4. No exhaustive list of undertakings
 ARTICLE 101 (1): THE
PROHIBITION
 Article 101 (1) prohibits:

 all agreements between undertakings, decisions by associations of undertakings, and concerted

practices

 which may affect trade between Member States; and

 which have as their object or effect the prevention, restriction, or distortion of competition within
the internal market
 ARTICLE 101 (1): THE
PROHIBITION
DECISIONS BY ASSOCIATION OF
AGREEMENTS
UNDERTAKINGS
 Covers formal binding contracts as well as  Arrangements between undertakings
less formal agreements
 Decisions of associations of undertaking
 Art. 101 (1) incorporates agreements,
even much less formal concerted practices
 If all elements of Art. 101 (1) are satisfied,
there is a breach
 ARTICLE 101 (1): THE
PROHIBITION
UNDERTAKINGS CONCERTED PRACTICES

 Interpreted broadly  Interpreted broadly

 Includes natural and legal persons
(individuals and companies) who engage
in commercial activity for the provision of
goods and services
 ARTICLE 101 (1): THE
PROHIBITION
VERTICAL AND HORIZONTAL
CARTELS
AGREEMENTS

 2+ businesses agreeing not to compete  Horizontal agreements: parties operating

with each other
 Many forms: price fixing, sharing markets,
rigging bids, restricting output of goods
and services
at the same level of the
production/distribution chain
 Vertical agreements: different levels
(manufacturer X distributor
 ARTICLE 101 (1): THE
PROHIBITION
PREVENTION, RESTRICTION, AND PRICE-FIXING, FIXING OTHER
DISTORTION OF COMPETITION TRADING CONDITIONS

 Covers all forms of anti-competitive  Includes horizontal and vertical price-

behaviour. fixing
PRINCIPLE: DE MINIMIS
 = certain agreements limiting competition
which would be subject to examination under
normal circumstances, with insignificant effects
on the market

 Such agreements are useful for cooperation

between small and medium-sized enterprises.
 ARTICLE 101 (2)
 Any agreements or decisions prohibited
pursuant to this Article shall be
automatically void.
 ARTICLE 101 (3)
=speaking about exemptions/inapplicable cases:

 Any agreement or category of agreements between undertakings

 Any decision or category of decisions by associations of undertakings
 Any concerted practice or category of concerted practices

contributes to improving the production/distribution of goods or to promoting technical/economic

progress, while allowing consumers a fair share of the resulting benefit

AND WHICH DOES NOT:

a)impose on the undertakings concerned restrictions which are not indispensable to the attainment
of these objectives
b) afford such undertakings the possibility of eliminating competition in respect of a substantial
part of the products in question
 REGULATION 1/2003
=about system of cooperation between the European Commission and the Member states
(national courts and national competition authorities)

 The European Commission/D-G Comp/national competition authorities are empowered to

investigate infringements of art.101 and 102issue decisions + impose fines
 Close cooperation include for example the Exchange of information
 Cooperation with national courts:
 Can request information/advice from the Commission
 May refer question of interpretation to the Court of Justice
 C-58/64 ÉTABLISSMENTS CONSTEN SARL
AND GRUNDIG-VERKAUFS-GmbH V
COMMISSION
 Grundig-Verkaufs-GmbH = German manufacturer of devices

 Établissements Consten =company in France- agreement with Grundig as a solo representative in France territory

 UNEF- company- bought appliances from German traders (delivered them in spite of the export prohibition)
French market with better prices
 2 actions against UNEF by Consten
 Unfair competition
 Infringement of the GINT trade-mark
………….
 Commission- agreement between Grundig and Consten is unlawful

Judgement by ECJ: agreement between Grundig and Consten is unlawful

 GINT GINT

Grundig
Consten

UNEF Wholesaler 1 Wholesaler 2

Retailers Retailers
 THANK YOU
FOR YOUR ATTENTION
 SOURCES
 https://www.tacr.cz/wp-content/uploads/documents/2019/10/21/1571655737_definice_podniku_bez_c.j.pdf
https://curia.europa.eu/juris/liste.jsf?language=cs&num=C-41/90&td=ALL
 https://elvingerhoss.lu/publications/new-rules-de-minimis-state-aid?utm_source=mondaq&utm_medium=syndication&utm_term=anti-trust-competition-law&ut
m_content=articleoriginal&utm_campaign=article
 https://moral.av.tr/en/legal-updates/%E2%80%9Cde-minimis%E2%80%9D-principle-in-competition-law-329
 https://is.muni.cz/el/1422/jaro2015/SOC009/um/Cl._101_-_1_TFEU__ERASMUS_ZuTon_duben_2011.pdf
 https://phix.zcu.cz/moodle/pluginfile.php/637070/mod_resource/content/0/26_competition_101_DeB%C3%BArcaA%20%281%29.pdf
 https://eur-lex.europa.eu/legal-content/CS/TXT/HTML/?uri=CELEX:12008E101
 https://eur-lex.europa.eu/legal-content/CS/TXT/?uri=CELEX:32003R0001
 https://cz.pinterest.com/pin/1048916569449364503/
 https://cz.pinterest.com/pin/403142604157618860/
 https://cz.pinterest.com/pin/663577326359758318/
 https://en.wikipedia.org/wiki/Consten_SaRL_and_Grundig_GmbH_v_Commission
 https://www.youtube.com/watch?v=AOlrkLz8aZ0
 https://isap.vlada.cz/Dul/JUDIKATY.nsf/9c363760d7ae8b9d80256dd00033eec7/a3c071a6a5bc82958025662700467bfd?OpenDocument
 https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:61964CJ0056&from=EN
 https://en.wikipedia.org/wiki/Flag_of_Germany#/media/File:Flag_of_Germany.svg
 ¨https://cs.wikipedia.org/wiki/Francouzsk%C3%A1_vlajka#/media/Soubor:Ensign_of_France.svg