Competition Law:

Commission v. Germany

-Activities which involve the exercise of public powers are not of an economic nature and therefore are not subject to the competition rules.

Agreement Cases 41 44 & 45/69 ACF Chemiefarma v Commission (Quinine Cartel) [1970] ECR 661 -Gentleman's agreement suffices (oral, not legally binding, handshake) Case C-2/01 P etc Commission v Bayer [2004] ECR I-23 -Unilateral behaviour will not suffice to create an agreement under Article 101(1). There must be at least 'tacit acquiescence', a 'concurrence of wills' on the part of both parties.

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Commission v. Volkswagen -Agreement within the meaning of s.101 if they form part of a set of continues business relations governed by a general agreement drawn up in advance.

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Concerted Practice C-48/69 ICI v Commission (Dyestuffs) [1972] ECR 619 -'A form of co-ordination between undertakings which, without having reached the stage where an agreement properly so-called had been concluded, knowingly substitutes practical co-operation between them for the risks of competition.' Cases 89, 104, 116-117 & 125 -129/85 A. Ahlstom & others v Commission, (Woodpulp) [1993] ECR 1-1307 -....'it must be stated that, in this case, concertation is not the only plausible explanation for the parallel conduct .....Accordingly, the parallel conduct established by the Commission does not constitute evidence of concertation Case 199/92P Huls AG v Commission [1999] ECR 1- 4287 Single o/all agreement -'the presumption must be that the undertakings taking part in the concerted practice and remaining active on the market take account of the information exchanged with their competitors for the purposes of determining their conduct on that market'. Single meeting Case C-8/08 T-Mobile Netherlands para 35, 58-61 -Where an undertaking participating in a concerted action had remained active on the market in question, there was a presumption of a causal connection between the concerted practice and the conduct of the undertaking on that market even where the concerted action was the result of a single meeting held by the participating undertakings.

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Case C-73/95 Viho Europe v Commission [1996] ECR I-5457 [1997] 4 CMLR 419 Held, that the Treaty of Rome 1957 Art.85(1), prohibiting agreements between undertakings which had the aim or effect of preventing competition, was not applicable where a company and its subsidiaries formed a single economic unit within which the subsidiaries enjoyed no real autonomy in determining their activities, even though the parent company's policy of dividing national markets between its subsidiaries could affect a third party's competitive position. However, Art.86 could apply to such unilateral conduct if the conditions laid down therein were fulfilled.

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Case C-97/08 AKZO Nobel v Commission [2009] ECR I-8237 -There will be a presumption that the parent company exercises a decisive influence over the conduct of its subsidiary if the parent company has a 100% shareholding in the subsidiary. - An individual pursuing an economic activity?

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Unitel Comm decn 78/516 OJ 1978 L157/39 [1978] 3 CMLR 306 (opera singers) Abstract: The Commission of the European Communities considered the situation following the disruption by a German radio and television company of a planned world-wide broadcast by the Italian Radio and Television Organisation. The German company claimed that artists in the proposed Italian programme infringed exclusive contracts with it. Held, artistes such as lead opera singers are undertakings within the meaning of Art.85(1) EEC when they use commercially their performances. Where an undertaking is required to give information pursuant to a request under Art.1 of Regulation 17 it may not refuse because it is of the opinion that the agreement does not affect trade between Member States. The German company was required to produce certain information to the Commission.

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Case C-309/99 Wouters [2002] 4 CMLR 27 Abstract: In the course of proceedings relating to the prohibition of multi disciplinary partnerships between barristers and accountants in the Netherlands, a reference was made to the ECJ for a preliminary ruling as to whether (1) the Dutch national regulation on joint professional activity as adopted by the Bar of the Netherlands was a decision taken by "an association of undertakings" within the meaning of the EC Treaty Art.81; (2) the provision was contrary to Art.81 in that it restricted competition and trade between Member States; (3) the Bar of the Netherlands was an undertaking, or a group of undertakings, for the purposes of EC Treaty Art.82, and (4) whether the prohibition was compatible with Community competition law and, if not, whether the restriction on the freedom to provide services and on the right of establishment was reasonable. Held, ruling on the preliminary issues, that (1) members of the Bar of the Netherlands carried on economic activity in that they offered services; accordingly they were undertakings. The Bar of the Netherlands as a professional body was neither exercising a public law function nor a social function when it adopted the national regulation, rather it was performing a regulatory function of an economic entity. As such, the Netherlands Bar, in adopting the national regulation, was expressing its intention that its members should carry on economic activity in a particular manner. Accordingly, the adoption of the regulation was a decision of an "association of undertakings" within the meaning of Art.81(1); (2) the decision of an association of undertakings to restrict the freedom of its members was in general prohibited under Art.81(1). However, in the instant case the restrictive effects upon competition did not exceed those necessary for proper regulation of members of the Bar; (3) the Netherlands Bar could not be categorised as an undertaking for the purposes of Art.82 because there were insufficient structural links between its members, there was intense competition between its members and it did not carry on any economic activity in its own right. Therefore, it could not be considered to occupy a collective dominant position in the market, and (4) the restriction upon the establishment of multi disciplinary partnerships between barristers and accountants within the Netherlands was reasonable and necessary for the proper regulation of the profession as a whole.

Nutshell: Even lawyers and members of the bar can be considered as undertakings *Undertaking

Article 101(1) TFEU prohibits all 'agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the Internal Market'. Case 41/90 Hofner and Elser [1991] ECR I - 1979: 'The concept of undertaking encompasses every entity engaged in an economic activity regardless of the legal status of the entity and the way in which is it financed' Parent & subsidiary 'Article 85[101] is not concerned with agreements or concerted practices between undertakings belonging to the same concern and having the status of parent company and subsidiary if the undertakings form an economic unit within which the subsidiary has no real freedom to determine its course of action on the market and if the agreements or practices are concerned merely with the internal allocation of tasks as between the undertakings '

...*Undertaking *Article 101