The tests of illegality under articles 101 and 102 tfeu. Antitrust legislation treaty provisions competition rules applying to undertakings treaty on the functioning of the european union article 101. Competition law provisions can be found in article 101, 102, 107 tfeu and the merger regulation, all of those prohibit anticompetitive agreements and abuse of dominance. Articles 101 and 102 tfeu are interpreted and enforced with the explicit purpose of advancing the integration of member states economies. The tests of illegality under articles 101 and 102 tfeu professor p. Consolidated version of the treaty on the functioning of the european union part three.
Tacit coordination in oligopolistic markets and articles 101 102 tfeu. Article 102 tfeu prohibits anticompetitive behaviour by dominant undertakings, and, together with article 101 tfeu, stands in the centre of the competition policy of the eu. Commission notice on best practices for the conduct of proceedings concerning articles 101 and 102 tfeu text with eea relevance. Article 102 of the treaty on the functioning of the european. Article 102 of the treaty on the functioning of the european union formerly article 82 of the treaty establishing the european community is aimed at preventing undertakings who hold a dominant position in a market from abusing that position. Treaty on the functioning of the european union and.
Moreover, the above mention declarations were, in fact, substituted by a sport provision in the lisbon treaty siekmann, 2012. Eu competition policy and the harmonized enforcement of articles 101 and 102 tfeu. Article 101 3 tfeu, this was seen as highly unlikely. Articles 101 and 102 tfeu to agreements, to decisions by associations of undertakings, to concerted practices or to the abuse of a dominant position which are capable of affecting trade between member states. Particular restrictions that fall within the impugned category are therefore automatically seen as having the object of restricting competition under article 101 1 tfeu. The general prohibition in article 101 is followed by a nonexhaustive list of examples of anticompetitive practices such as. Its purpose is to control anticompetitive behaviour entered into between different undertakings. Article 102 tfeu abuse of a dominant position chapter 4.
Tacit coordination in oligopolistic markets and articles 101. This is true under article 102 tfeu think of the treatment of practices like exclusive dealing and loyalty rebates but also pricing below average variable costs 38 and tying 39 and article 101 tfeu. Article 101 prohibits cartels and anticompetitive agreements, while article 102 prohibits abuse of a dominant position. The author would like to thank christina eckes, kati cseres, pinar akman, peter whelan, the participants. For the purposes of this document, references to articles 101 and 102 tfeu should be understood as references to articles 81 and 82 of the ec treaty when appropriate.
That specific contribution is the tests of illegality adopted in markovitss study to interpret articles 101 and 102 of the treaty on the functioning of the european union tfeu. Articles 81 and 82 of the ec treaty have become articles 101 and 102 respectively of the tfeu. Article 851 of the ec treaty is now article 1011 tfeu. Article 101 of the treaty on the functioning of the european.
The consistent application of eu competition law springerlink. In brief, the courts are now supporting their decisions about sport competition issues based not only on the tfeu, but also on. Article 102 ex article 82 tec any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited as incompatible with the internal market in so far as it may affect trade between member states. It prohibits restrictive agreements between independent market operators acting either at the same level of the economy horizontal agreements, often as actual or potential competitors, or at different levels vertical agreements, mostly as producer and distributor. The proposed economic reform from a legal point of. Pdf fundamental procedural rights and effective enforcement of. Pdf tacit coordination in oligopolistic markets and. The two sets of provisions are, in substance, identical. Eu competition law abuse of dominance article 102 tfeu. An authority or a claimant can effectively discharge its burden of proof by establishing, to the requisite legal standard, that the by. A commentary on article 102 tfeu by martin herz, hans h. Common rules on competition, taxation and approximation of laws chapter 1. Member states interest in the enforcement of eu competition law. Article 101 tfeu touches upon coordinated behaviour between undertakings, whereas article 102 concerns the unilateral action of an undertaking.
Agreements that restrict competition by object under. Proceedings for the application of articles 101 and 102. Another example is found in article 102 tfeu case law. Directive eu 20191 is intended to empower the competition authorities of the member states to be more effective enforcers of eu competition law. Antitrust law to interpret articles 101 and 102 of the. Eu antitrust law whenever they apply national competition law to conduct falling within the scope of eu antitrust law. The tfeu does not actually define the term undertakings, but this has been interpreted broadly to include natural and legal persons engaged in commercial activity for the provision of goods and services. It is plausible that an exclusivity obligation has anticompetitive effects when applied by a dominant firm, even though it covers a small part of the market. Commission notice on best practices for the conduct of. For this reason, articles 81 and 82 of the ec treaty have become, respectively, articles 101 and 102 of the new tfeu practical law, 2017. The text of article 102 provides the following, any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited as incompatible with the internal market in so far as it may affect trade between. May 09, 2016 video lecture on articles 101 and 102 tfeu competition law in the eu. Article 53 and 54 of the eea agreement are essentially the same provisions and effectively extend european competition law to cover the eea countries, i.
Capability vs likelihood in the context of articles 101. Therefore, there is every reason to prohibit it as restrictive by object under article 1011 tfeu. In practice, most ncas apply national competition law in parallel to articles 101 and 102 tfeu. In this paper it will discuss the general framework of both articles by analyzing all the elements of the articles, such us. Agreements that restrict competition by object under article. The concepts of dominance and abuse are the articles pivots and have been reinterpreted over the course of the history of the eu.
Its core role is the regulation of monopolies, which restrict competition in private industry and produce worse outcomes for consumers and society. Article 86 of the ec treaty is now article 102 tfeu. Dec 14, 2016 therefore, there is every reason to prohibit it as restrictive by object under article 101 1 tfeu. Article 102 of the treaty on the functioning of the european union tfeu formerly under article 82 of the european community treaty ec prohibits dominant undertakings from abusing their position within an internal market or in a substantial part of it, as incompatible with the internal market in so far as it affects trade between member states. The two sets of provisions are in substance identical. Based on article 101 of tfeu the commission has these tasks 22. Particular restrictions that fall within the impugned category are therefore automatically seen as having the object of restricting competition under article 1011 tfeu.
Ec treaty have become, respectively, articles 101 and 102 of the new tfeu practical law, 2017. This article also examines the claim that none of these tests is an economicinefficiency test of illegality. Eu competition law abuse of dominance article 102 tfeu uio. Pdf the tests of illegality under articles 101 and 102. The antitrust manual of procedures does not contain binding instructions for. Pdf the tests of illegality under articles 101 and 102 tfeu. Cartels and other horizontal cooperation agreements. The paper first provides a nonexhaustive list of such rights as applicable to the enforcement of articles 101 and 102 tfeu by. In this sense, eu competition law stands out from other regimes. Article 101, 102 formerly articles 81 and 82 and before that. Antitrust law by richard markovits to our understanding of us and eu antitrust laws. Competition rules applying to undertakings treaty on the. Pdf interpreting the boundaries of collective dominance.
Treaty on the functioning of the european union tfeu. In order to achieve the objectives of the antitrust rules, eu needs an effective enforcement system for enforcing eu competition law. Article 101 tfeu specifies the rules applicable to the behaviour of undertakings. The term undertaking is a eurospeak word for any persons or firms in an enterprise, and is used to describe those engaged in an economic. Without prejudice to article 4 of the treaty on european union or to articles 93, 106 and 107 of this treaty, and given the place occupied by services of general economic interest in the shared values of the union as well as their role in promoting social and territorial cohesion, the union and the. Article 102 of the treaty on the functioning of the. Specifically, the current articles 101 and 102 of the treaty on the functioning of the european union tfeu are the focus of this analysis.
Request pdf the tests of illegality under articles 101 and 102 tfeu this article aims to assess one of the many contributions of economics and the. Article 101, 102 formerly articles 81 and 82 and before. Article 101 of the treaty on the functioning of the european union attempts to strike a balance between the need to allow businesses to strike bargains with each other, and the need to ensure that those arrangements do not act against the consumers interests. The tests of illegality under articles 101 and 102 tfeu by pinar. Suffice it to think of practices hindering crossborder trade such as market sharing cartels,2 agreements between domestic firms to prevent entry by foreign rivals,3 and. Article 101 tfeu does not specifically ban cartels, instead declaring as illegal all agreements, decisions and concerted practices which are anticompetitive and which distort the single market. This allows national competition authorities and the courts of the member states to apply articles 101 and 102 tfeu themselves. Iv, issue 8 november 2016 6945 articles 101 and 102 tfeu are the most prominent treaty provisions on competition. Jul 11, 2012 specifically, as it has been stated the national competition authorities are responsible for informing the commission of any prohibition or commitment decision relating to the application of articles 101 and 102 tfeu and any decision withdrawing the benefit of a block exemption regulation not later than thirty days before it is adopted. For the purposes of this decision, references to articles 101 and 102 of the tfeu should be understood as references to articles 81 and. In brief, the courts are now supporting their decisions about sport competition issues based not only on the tfeu, but also on the white paper of sport and referential cases. Articles 101 and 102 are a matter of public policy which must be automatically applied by national courts eco swiss, 1999 any individual can rely on a breach of article 101 and 102 ec before a national court courage v crehan, 2001 any individual can claim compensation for the harm suffered where there.
European competition law essay example 68 words cram. This paper deals with the fundamental procedural rights of companies that are targeted in the enforcement of articles 101 and 102 tfeu by the european commission or the competition authorities of the eu member states. Dg competitions manual of procedures for the application of articles 101 and 102 tfeu is an internal working tool intended to give practical guidance to staff on how to conduct an investigation applying articles 101 and 102 tfeu. Rules applying to undertakings article 102 ex article 82 tec. Capability vs likelihood in the context of articles 101 and. The antitrust manual of procedures does not contain binding instructions for staff, and the procedures set out in. The article 101 is composed of three paragraphs, whose first one covers cartels. Article 101 tfeu, notion of undertaking and succession of. Antitrust law by richard markovits is without doubt one of the most impressive academic commentaries on us and eu antitrust law. Without prejudice to article 4 of the treaty on european union or to articles 93, 106 and 107 of this treaty, and given the. Article 102 tfeu article 102 tfeu ex article 82 ec, ex article 86 ec any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited as incompatible with the internal market in so far as it. Articles 101 and 102 of the treaty on the functioning of the european union tfeu prohibit anticompetitive business practices. Fundamental procedural rights and effective enforcement of articles 101 and 102 tfeu in the european competition network. It is the second key provision, after article 101, in tfeu competition law.
Article 101 tfeu is one of the three pillars of eu competition law. The european commission, national competition authorities, and national courts enforce articles 101 and 102 under powers conferred by regulation 12003. Fundamental procedural rights and effective enforcement of. The tests of illegality under articles 101 and 102 tfeu request pdf. Damages actions for breach of articles 101 and 102 tfeu. Articles 101 and 102 are a matter of public policy which must be automatically applied by national courts eco swiss, 1999 any individual can rely on a breach of article 101 and 102 ec before a national court courage v crehan, 2001 any individual can. Article 1011 prohibits any agreement or concerted practice formal or informal, written or unwritten that is made between. The paper first provides a nonexhaustive list of such rights as applicable to the enforcement of articles 101 and 102 tfeu by the european commission, and explains the source of these fundamental rights in the eu legal. Tacit coordination in oligopolistic markets and articles 101102 tfeu. This article aims to assess one of the many contributions of economics and the interpretation and application of u. Video lecture on articles 101 and 102 tfeu competition law in the eu. Article 1012 states that a violation has occurred unless it meets the criterion given in article 10. Jun 02, 2017 article 102 tfeu prohibits anticompetitive behaviour by dominant undertakings, and, together with article 101 tfeu, stands in the centre of the competition policy of the eu. Article 102 tfeu article 102 tfeu ex article 82 ec, ex article 86 ec any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited as incompatible with the internal market in so far as it may affect trade between member states.