Introduction
This essay explores key concepts of European Union competition law under Articles 101(1) and 102 of the Treaty on the Functioning of the European Union (TFEU). Specifically, it examines the notions of “agreement”, “decision”, and “concerted practice” as prohibited forms of anti-competitive behaviour under Article 101(1) TFEU, with reference to relevant case law from the Court of Justice of the European Union (CJEU). Additionally, it analyses how a “dominant position” can be held by “one or more undertakings” under Article 102 TFEU, again drawing on CJEU jurisprudence. The purpose of this essay is to provide a clear understanding of these concepts, supported by judicial interpretations, and to highlight their significance in ensuring fair competition within the internal market. The discussion will be structured into two main sections, addressing each article separately, before concluding with a summary of the key points.
Article 101(1) TFEU: Agreements, Decisions, and Concerted Practices
Article 101(1) TFEU prohibits agreements between undertakings, decisions by associations of undertakings, and concerted practices that may affect trade between Member States and have as their object or effect the prevention, restriction, or distortion of competition. The concept of an “agreement” has been broadly interpreted by the CJEU to include both formal and informal arrangements, whether written or oral. In Commission v Anic Partecipazioni (Case C-49/92 P, 1999), the Court clarified that an agreement exists when there is a concurrence of wills between at least two parties, irrespective of whether it is legally binding. This ensures that even tacit understandings fall within the scope of Article 101(1).
Similarly, a “decision” typically refers to binding resolutions or rules adopted by associations of undertakings, such as trade associations. The CJEU in Wouters v Algemene Raad van de Nederlandse Orde van Advocaten (Case C-309/99, 2002) confirmed that decisions limiting competition within a professional body can violate Article 101(1), although exceptions may apply if they pursue legitimate objectives, such as public interest.
The notion of a “concerted practice” captures coordination between undertakings that falls short of a formal agreement but still reduces competition. In Imperial Chemical Industries v Commission (Dyestuffs) (Case 48/69, 1972), the CJEU defined concerted practices as a form of coordination where undertakings knowingly substitute practical cooperation for the risks of competition. This often manifests through parallel behaviour, such as price-fixing, where direct proof of contact is not required if anti-competitive intent can be inferred from market conduct.
Article 102 TFEU: Dominant Position by One or More Undertakings
Article 102 TFEU prohibits the abuse of a dominant position within the internal market by one or more undertakings insofar as it affects trade between Member States. A “dominant position” refers to a position of economic strength that enables an undertaking to prevent effective competition by acting independently of competitors, customers, or consumers. In United Brands v Commission (Case 27/76, 1978), the CJEU established that dominance is assessed based on market share, barriers to entry, and other structural factors, with a market share above 50% often indicating dominance, though this is not conclusive.
Importantly, a dominant position can be held collectively by “one or more undertakings”. The CJEU in Compagnie Maritime Belge Transports v Commission (Cases C-395/96 P and C-396/96 P, 2000) confirmed that collective dominance arises where two or more undertakings, through economic links or coordinated behaviour, collectively hold a dominant position. This concept often applies to oligopolistic markets where undertakings align their conduct to limit competition, effectively acting as a single dominant entity. For instance, tacit collusion or structural links, such as joint ventures, may establish collective dominance, provided there is evidence of coordinated market power.
Conclusion
In conclusion, the CJEU’s interpretation of Article 101(1) TFEU demonstrates a broad approach to capturing anti-competitive behaviour through agreements, decisions, and concerted practices, as evidenced in cases like Anic Partecipazioni and Dyestuffs. This ensures that both explicit collusion and subtle coordination are addressed. Similarly, under Article 102 TFEU, the concept of a dominant position, whether held individually or collectively, as clarified in United Brands and Compagnie Maritime Belge, plays a critical role in preventing market abuse. These principles are fundamental to maintaining a competitive internal market, though their application often involves complex assessments of market dynamics. The CJEU’s evolving jurisprudence continues to balance the need for robust competition enforcement with the recognition of legitimate commercial practices, shaping the future of EU competition law enforcement.
References
- Commission v Anic Partecipazioni SpA (Case C-49/92 P) [1999] ECR I-4125.
- Compagnie Maritime Belge Transports SA v Commission (Cases C-395/96 P and C-396/96 P) [2000] ECR I-1365.
- Imperial Chemical Industries Ltd v Commission (Dyestuffs) (Case 48/69) [1972] ECR 619.
- United Brands Company v Commission (Case 27/76) [1978] ECR 207.
- Wouters v Algemene Raad van de Nederlandse Orde van Advocaten (Case C-309/99) [2002] ECR I-1577.
