EU Competition Law and Policy - compal

©Ariel Ezrachi, December 2012
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The following cases provide a good illustration of the notion of agreement and the distinction
between agreements and unilateral actions:
107/82 AEG – Telefunken v Commission
25 & 26/84 Ford v Commission
T-41/96 Bayer v Commission
T-208/01 Volkswagen v Commission
C-74/04 Volkswagen v Commission
Concerted Practice
At times it is possible for some form of cooperation between undertakings to take place without
giving rise to an agreement. To ensure the effectiveness of the competition provisions, Article
101 TFEU is also applicable to ‘concerted practices’. The concept of ‘concerted practice’ refers
to forms of coordination between companies, which, without reaching the level of an agreement,
have nevertheless established practical cooperation between them. This cooperation substitutes
the risks of competition to the detriment of consumers.
Concerted practice is commonly proven by showing parallel conduct between companies, which
cannot be explained by any other reason but cooperation. It is therefore of major importance to
distinguish between anticompetitive parallel conduct and similarity of conduct which results
from the competitive process. Accordingly, concerted practice will not be established when
market conditions provide an explanation to the parallel conduct or where companies adapt
themselves intelligently and unilaterally to the existing and anticipated conduct of their
competitors.
On the concept of concerted practice see:
48/69 ICI v Commission (Dyestuffs)
40/73 etc Suiker Unie and others v Commission
89/85 etc A Ahlstrom Osakeyhtio and others v Commission (Wood Pulp Cartel)
C-199/92 Hüls AG v Commission
C-204/00 etc Aalborg Portland A/S and others v Commission
Object or Effect
Agreements, concerted practices or decisions of associations of undertakings are caught under
Article 101 TFEU when they have the object or effect of preventing, restricting or distorting
competition within the Internal Market. Anti-competitive object and anti-competitive effects
constitute alternative conditions and are distinguishable by the fact that certain forms of
collusion between undertakings can be regarded, by their very nature, as being injurious to the
proper functioning of normal competition. The following cases illustrate the distinction between
object and effect and the depth of analysis called for when assessing anticompetitive effect:
56/65 Société Technique Minière v Maschinenbau Ulm GmbH
56/64 etc Consten & Grundig v Commission
23/67 SA Brasserie de Haecht v Consorts Wilkin-Janssen
T-374/94 etc European Night Services v Commission
C-234/89 Stergios Delimitis v Henninger Brau AG
C-209/07 Competition Authority v Beef Industry Development Society
C-8/08 T-Mobile Netherlands and Others