Article 101

Question 1

What is necessary for Article 101? ABOMDR

Answer 1

1. An agreement
2. Between undertakings
3. Which has as it’s object or effect the distortion of trade
4. Which affects trade between member states
5. Defences
6. Remedies

Question 2

Agreements can be oral or “gentleman’s agreements”. Which case?

Answer 2

Quinine Cartel

Question 3

Regulations promulgated by professional organisations can be agreements. Which case?

Answer 3

Wouters v Algememe

Question 4

Concerted practices can be agreements. Which case?

Answer 4

Dyestuffs

Question 5

What is the definition of a concerted practice in Dyestuffs?

Answer 5

“Coordination between parties which falls short of informal agreement but knowingly substitutes practical cooperation for the risks of competition”.

Question 6

If an oligopoly exists with transparent price structures, this may rebut the presumption of a concerted practice. Which case?

Answer 6

Woodpulp

Question 7

Either object or effect will be sufficient. Which case?

Answer 7

Société Technique Minière

Question 8

The test for whether an agreement has an anti competitive object is objective. Which case?

Answer 8

Consten v Grundig

Question 9

Which case lays out the factors to consider whether an agreement has an anti competitive effect?

Answer 9

Société Technique Minière

Question 10

What are the factors in Société Technique Minière for an anti competitive effect?

Answer 10

1. Nature and quantity of products
2. Position of parties in the market
3. Severity of clauses

Question 11

What is the test for determining whether the agreement is between member states?

Answer 11

STM “is it possible to foresee with a sufficient degree of possibility that actually or potentially, the agreement may have an impact on trade between member states.

Question 12

Potential impact is what is important. Which case?

Answer 12

Consten v Grundig

Question 13

Any agreement under Article 101(2) is automatically void. True or false?

Answer 13

True

Question 14

Article 101 is directly effective. Which case?

Answer 14

BRT & Sabam

Question 15

What does NAOMI stand for?

Answer 15

Notice on Agreements Of Minor Importance

Question 16

What are the two conditions for the NAOMI restriction to apply?

Answer 16

1. The aggregate market share of the parties must not exceed 10% for horizontal agreements.
2. The aggregate market share of the parties must not exceed 15% for vertical agreements.

Question 17

What does NAAT stand for?

Answer 17

No Appreciable Affection of Trade

Question 18

What are the conditions for NAAT to apply?

Answer 18

1. Aggregate market share must not exceed 5%
2. For horizontal agreements- aggregate turnover must be less than 40m EUR
3. For vertical agreements, supplier turnover must be less than 40m EUR
4. Hardcore restrictions allowed

Question 19

What is the Block Exemption for Vertical Agreements? Regulation 2790/1999

Answer 19

Allows vertical agreements if certain conditions are met

Question 20

What are the 5 conditions for the Block Exemption for Vertical Agreements to apply?

COMMISSION REGULATION (EU) NO 330/2010

Answer 20

1. The market share held by the supplier does not exceed 30 % of the relevant market on which it sells the contract goods.
2. The market share held by the buyer does not exceed 30 % of the relevant market
   on which it purchases the contract goods or services.
3. No hardcore restrictions as in Article 4 of the Regulation apply
4. The agreement is vertical,.

Question 21

Parties may exempt themselves from Article 101 if they believe their agreement “improves the production or promotes technical progress”
AND
“consumers have a fair share of the resulting benefit”.

Which Article?

Answer 21

Article 101(3)

Question 22

Under which Regulation may the Commission arrive unannounced at a firm’s head quarters and undertake “dawn raids”?

Answer 22

Regulation 1/2003

Question 23

A leniency notice may be issued if the firm does what?

Answer 23

1. Complies with the Commission
2. Has not coerced others
3. Is the first to come forward

Hoffman La-Roche

Question 24

What is the process for enforcement of Article 101?

Answer 24

1. Commission investigates and concludes. May give a fine.
2. Company may appeal to the General Court
3. Company may appeal to the ECJ

Question 25

If the case is too minor for the Commission to deal with, what will happen?

Answer 25

The national authorities would deal with the issue.

Question 26

What must you not forget with Article 101?

Answer 26

Enforcement.

Question 27

No, seriously. What must you not forget at the end of Article 101?

Answer 27

ENFORCEMENT

Question 28

Once it has been shown that the object of competition is to distort trade- there is no need to demonstrate that that is it's effect.

Answer 28

Polypropelene

Question 29

What is the difference between Dyestuffs and Woodpulp with regards to concerted practices?

Answer 29

In Dyestuffs the company was found to have a concerted practice. In Woodpulp this was found to be an oligopoly, not a concerted practice.

Question 30

In which case was an attempt to put a company out of business found to have an effect between trade in the common market?

Answer 30

Commercial Solvents

Question 31

What is the latin name for the principle which underlies NAOMI?

Answer 31

De minimis

Question 32

In which case did the ECJ make clear that the NAOMI would apply to small agreements?

Answer 32

Volk v Vervaeke

Question 33

What is the case for supply substitutability?

Answer 33

Continental Can case

Question 34

What are the factors in which case for establishing whether an agreement has an anti competitive effect?

Answer 34

Societe Techniche Miniere a) The nature and quantity of products covered (b) The position and size of the parties concerned (c) The isolated nature of the agreement or its position in a series of agreements (d) The severity of the clauses (e) The opportunities for other commercial competitors in the same products by way of parallel imports.

Question 35

What was the ruling in the 'O2' case?

Answer 35

The commission found that an agreement between O2 and TMobile was in breach of Article 101, but exempted by Article 101(3). The General Court found that the agreement was not in breach of Article 101 because it did not distort competition.

Question 36

In what case was it found that a company with 49% market share was dominant as the nearest rival had 5%?

Answer 36

Commission v British Airways