Its purpose is to control anticompetitive behaviour entered into between different undertakings. 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. Agreements that restrict competition by object under. The general prohibition in article 101 is followed by a nonexhaustive list of examples of anticompetitive practices such as. Particular restrictions that fall within the impugned category are therefore automatically seen as having the object of restricting competition under article 1011 tfeu. Antitrust legislation treaty provisions competition rules applying to undertakings treaty on the functioning of the european union article 101. Pdf interpreting the boundaries of collective dominance. Antitrust law by richard markovits is without doubt one of the most impressive academic commentaries on us and eu antitrust law.
The antitrust manual of procedures does not contain binding instructions for. The tests of illegality under articles 101 and 102 tfeu request pdf. The consistent application of eu competition law springerlink. 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 tfeu is one of the three pillars of eu competition law. Eu competition policy and the harmonized enforcement of articles 101 and 102 tfeu. Fundamental procedural rights and effective enforcement of articles 101 and 102 tfeu in the european competition network. In this sense, eu competition law stands out from other regimes. 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. It is the second key provision, after article 101, in tfeu competition law.
The two sets of provisions are in substance identical. 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. Directive eu 20191 is intended to empower the competition authorities of the member states to be more effective enforcers of eu competition law. Common rules on competition, taxation and approximation of laws chapter 1. 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. 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. Article 1011 prohibits any agreement or concerted practice formal or informal, written or unwritten that is made between. Commission notice on best practices for the conduct of. 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. A commentary on article 102 tfeu by martin herz, hans h. Specifically, the current articles 101 and 102 of the treaty on the functioning of the european union tfeu are the focus of this analysis. European competition law essay example 68 words cram. Tacit coordination in oligopolistic markets and articles 101 102 tfeu.
Capability vs likelihood in the context of articles 101 and. Article 86 of the ec treaty is now article 102 tfeu. Moreover, the above mention declarations were, in fact, substituted by a sport provision in the lisbon treaty siekmann, 2012. May 09, 2016 video lecture on articles 101 and 102 tfeu competition law in the eu.
Agreements that restrict competition by object under article. Proceedings for the application of articles 101 and 102. Tacit coordination in oligopolistic markets and articles 101. Eu antitrust law whenever they apply national competition law to conduct falling within the scope of eu antitrust law. Article 102 tfeu abuse of a dominant position chapter 4. Article 101 3 tfeu, this was seen as highly unlikely. Member states interest in the enforcement of eu competition law. Eu competition law abuse of dominance article 102 tfeu. The tests of illegality under articles 101 and 102 tfeu professor p. Antitrust law by richard markovits to our understanding of us and eu antitrust laws. The two sets of provisions are, in substance, identical. Pdf the tests of illegality under articles 101 and 102 tfeu.
Antitrust law to interpret articles 101 and 102 of the. In brief, the courts are now supporting their decisions about sport competition issues based not only on the tfeu, but also on. 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. The concepts of dominance and abuse are the articles pivots and have been reinterpreted over the course of the history of the eu. The concepts of dominance and abuse are the articles pivots and have been reinterpreted over. Article 101 prohibits cartels and anticompetitive agreements, while article 102 prohibits abuse of a dominant position. Without prejudice to article 4 of the treaty on european union or to articles 93, 106 and 107 of this treaty, and given the.
The proposed economic reform from a legal point of. Therefore, there is every reason to prohibit it as restrictive by object under article 1011 tfeu. The tests of illegality under articles 101 and 102 tfeu. Based on article 101 of tfeu the commission has these tasks 22. Cartels and other horizontal cooperation agreements. Article 851 of the ec treaty is now article 1011 tfeu. Tacit coordination in oligopolistic markets and articles 101102 tfeu. 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. Treaty on the functioning of the european union 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. 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. This article aims to assess one of the many contributions of economics and the interpretation and application of u.
Fundamental procedural rights and effective enforcement of. 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 of the treaty on the functioning of the european. Competition rules applying to undertakings treaty on the.
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. 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. 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. Article 102 of the treaty on the functioning of the. Pdf tacit coordination in oligopolistic markets and. This article also examines the claim that none of these tests is an economicinefficiency test of illegality. For the purposes of this decision, references to articles 101 and 102 of the tfeu should be understood as references to articles 81 and. Damages actions for breach of articles 101 and 102 tfeu. Its core role is the regulation of monopolies, which restrict competition in private industry and produce worse outcomes for consumers and society.
Particular restrictions that fall within the impugned category are therefore automatically seen as having the object of restricting competition under article 101 1 tfeu. Commission notice on best practices for the conduct of proceedings concerning articles 101 and 102 tfeu text with eea relevance. Article 101 of the treaty on the functioning of the european. 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. 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. Dec 14, 2016 therefore, there is every reason to prohibit it as restrictive by object under article 101 1 tfeu. 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. Article 1012 states that a violation has occurred unless it meets the criterion given in article 10. Capability vs likelihood in the context of articles 101.
The tests of illegality under articles 101 and 102 tfeu by pinar. In practice, most ncas apply national competition law in parallel to articles 101 and 102 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. 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. The article 101 is composed of three paragraphs, whose first one covers cartels. Eu competition law abuse of dominance article 102 tfeu uio. Article 101, 102 formerly articles 81 and 82 and before that. Article 101 tfeu, notion of undertaking and succession of. Articles 101 and 102 tfeu are interpreted and enforced with the explicit purpose of advancing the integration of member states economies. 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. 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.
Ec treaty have become, respectively, articles 101 and 102 of the new tfeu practical law, 2017. 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. Consolidated version of the treaty on the functioning of the european union part three. The antitrust manual of procedures does not contain binding instructions for staff, and the procedures set out in.
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. Another example is found in article 102 tfeu case law. Treaty on the functioning of the european union and. Articles 101 and 102 of the treaty on the functioning of the european union tfeu prohibit anticompetitive business practices. This allows national competition authorities and the courts of the member states to apply articles 101 and 102 tfeu themselves. 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. From time to time, the european commission issues nonbinding notices providing clarification of the competition. Iv, issue 8 november 2016 6945 articles 101 and 102 tfeu are the most prominent treaty provisions on competition. In this paper it will discuss the general framework of both articles by analyzing all the elements of the articles, such us. In order to achieve the objectives of the antitrust rules, eu needs an effective enforcement system for enforcing eu competition law. Rules applying to undertakings article 102 ex article 82 tec.
The author would like to thank christina eckes, kati cseres, pinar akman, peter whelan, the participants. Article 101 tfeu specifies the rules applicable to the behaviour of undertakings. 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. 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. 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. 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. 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.
Pdf the tests of illegality under articles 101 and 102. Articles 81 and 82 of the ec treaty have become articles 101 and 102 respectively of the tfeu. Article 101 tfeu touches upon coordinated behaviour between undertakings, whereas article 102 concerns the unilateral action of an undertaking. Video lecture on articles 101 and 102 tfeu competition law in the eu. The paper first provides a nonexhaustive list of such rights as applicable to the enforcement of articles 101 and 102 tfeu by. Developments under articles 101 and 102 tfeu in 2010.