Friday, April 29, 2016
Rick Busscher, University of Groningen - Faculty of Law, Martin Herz, University of Groningen, and Hans H. B. Vedder, University of Groningen offer A Commentary on Article 101 TFEU.
ABSTRACT: Article 101 TFEU is one of the most prominent Treaty provisions on competition. It concerns hard core restrictions of competition like cartels as much as efficiency enhancing agreements. Moreover, competition is a primarily economic phenomenon, that can be understood, measured and appraised in many different ways. This means that a fundamental challenge in the interpretation of Article 101 follows from the necessity to provide adequate legal certainty and low compliance costs to undercover cartels as well as innocent cooperation agreements. This distinction between these two categories of cooperation coincides largely with the structure of Article 101 that distinguishes between agreements that have the object of restricting competition and those that have this effect.
This bifurcated approach and its effects on the legal and economic appraisal involved will be central to this commentary.
In this paper we will first discuss the general framework of Article 101 and the preliminaries of its application. After that the first and third paragraph of Article 101 TFEU will be discussed on the basis of the Court’s interpretation as well as the decisional practice of and guidance by the Commission. Finally, Article 101(2) will be discussed. In doing so, we will also engage in a comparison with US antitrust law, given that many of the issues surrounding Article 101 can be found in other jurisdictions and comparative approach may provide valuable insights.