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Law Notes Competition Law Notes

Article 101 Notes

Updated Article 101 Notes

Competition Law Notes

Competition Law

Approximately 389 pages

Competition Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB and BCL competition law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Canada, Hong Kong or Malaysia (University of London).

These were the best Competition Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through forty-eight LLB samples from outstanding la...

The following is a more accessible plain text extract of the PDF sample above, taken from our Competition Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Article 101

Competition Law LLM

Table of Contents

Article 101(1) TFEU 3

Requirements for Article 101(1) TFEU 3

The Concept of an Undertaking 3

Why a Functional Approach? 3

Solidarity 4

Public Power 4

Territorial Scope 4

Single Economic Entity Doctrine 4

The Structure of Article 101 TFEU 6

Agreement 6

Concerted Practice 6

Decisions of Associations of Undertaking 8

Complex Breaches 8

Boundary between 101 and 102 8

Apparently Unilateral 9

Single Economic Entity Doctrine 9

“Object or effect the prevention, restriction or distortion of competition within the internal market” 10

Restrictions by Object 10

Restrictions by effect 13

Agreements that have neither the object nor the effect of restricting competition 14

Appreciability 15

“May affect trade between Member States” 15

Cartels 16

Justifying Restrictive Coordination 18

Rule of Reason within Article 101(1) TFEU? 18

Evidence that we do have a Rule of Reason 18

Problem Cases for the Orthodox View 19

Art 101(3) TFEU 20

The Elements of Art 101(3) TFEU 20

Criterion 1 20

Criterion 3 22

Criterion 2 22

Criterion 4 23

Article 101(2) 23

Article 101(1) TFEU

Requirements for Article 101(1) TFEU

  1. Undertakings

  2. Collusion

  3. With object or effect to prevent, restrict or distort competition

  4. Appreciable effect on competition (de facto – Völk v Vervaecke)

  5. Appreciable effect on inter state trade (de facto – Völk v Vervaecke)

The Concept of an Undertaking

What is an undertaking? Article 101 only applies where there are 2 or more ‘undertakings’. What does that mean? We need to distinguish between cases where there are two undertakings, and where there is only one undertaking. Fines are capped at the turnover of the entire undertaking, so the definition of undertaking is very important. If a subsidiary company breaches competition law, then the entire multinational is hit.

Need a narrow concept for the purposes of jurisdiction, but then a wide concept for enforcement.

Broad concept is different to a formalistic definition, which is better for the 27 different legal systems we are looking at. We don’t look at the form of the actor; we look at the substance and/or function of the actor. An undertaking is any entity engaged in an economic activity, where this is defined as offering goods and services on a given market. This means that there does not need to be profit, or private ownership. It could be a publically owned company, particularly if it is carrying out public service (Ambulanz Glockner), and all it needs is the potential to make profit.

The public body could itself be an undertaking even if no private body can enter the market, as long as there is no factual requirement that a public body govern the market.

Höfner and Elser

The German Federal Office for Employment possessed a statutory monopoly on placing employees with employers. German law also allowed the Bundesanstalt to entrust other institutions or people with employment procurement services under its supervision. Höfner and Elser were recruitment consultants & placed a candidate as a sales director with a company called Macrotron, who had decided that they did not want the candidate so argued that any contract was void. Höfner and Elser therefore challenged the provision declaring the contract void under the EC competition law provision, Article [102].

As a preliminary question, the European Court of Justice held that the Bundesanstalt, even though it was a public body, could be subject to competition laws. It was an "undertaking", and therefore fell within the scope of the Treaty. Furthermore, by failing to satisfy demand for a good or service, the exclusive right of the German government to regulate employment services could amount to the abuse of a dominant position.

Where a subsidiary company has no economic independence, where the subsidiary forms an economic unit with the parent, wherein the subsidiary has no real freedom to determine its course of action on the market, then the subsidiary and parent may be treated as a single economic entity for the purpose of Art 101 TFEU. The question is whether they behave together as a single unit on the market (Daimler Chrysler). See below.

Why a Functional Approach?

Could be about the 27 different legal systems, could be about the public / private divide (Odudu). This is the idea that we want to distinguish between private activities and public activities. We want to capture the market in private activities, regardless of who is controlling the behaviour. Member states are using private companies to do public services, and we are concerned about the interaction between this and competition law.

Solidarity

Competition law doesn’t apply to undertakings that are engaged in the (inherently uncommercial act of) involuntary subsidisation of one social group by another.

Look at the social objective of the activity performed

E.g. Compulsory participation, or no-fault element.

The existence of state control

If the entity can act to a certain extent independent of state control, this doesn’t mean no solidarity, but the cases are not clear on the boundary between state control and no state control

The essence of solidarity

Need redistribution of income between those who are better off and those who, in view of their resources and state of health, would be deprived of the necessary social cover.

Public Power

If a private company is exercising public power, it’s not subject to competition rules. This requires a company to exercise public authority.

Cali & Figli

SEPG granted a contract over port to provide environmental services.

Even though it was charging for its goods and services, not an undertaking, for public power reason

Competition law did apply in the Airport de Paris case for some areas.

Assessed from the perspective of the entity itself, don’t just look at the overall transaction; you look at the entity you’re trying to apply competition law to. For example,

FENIN

The 26 different entities that made up the Spanish Health Service were thought to...

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