European Competition Law provides a wide-ranging review of the European rules relating to competition: restrictive agreements, abuse of a dominant position, impact of intellectual property rights, procedure, merger control, State aid.

European Competition Law

The concept of effect should be interpreted in a neutral, non-negative manner since it is a condition of the applicability of EU law and not a condition of the restriction of competition . At this stage it is not a matter of whether the agreement should be prohibited but rather whether EU law applies. However, the issue of neutral or negative interpretation has not been clearly resolved under EU l …

Concept of "effect"

The concept of effect should be interpreted in a neutral, non-negative manner since it is a condition of the applicability of EU law and not a condition of the restriction of competition . At this stage it is not a matter of whether the agreement should be prohibited but rather whether EU law applies. However, the issue of neutral or negative interpretation has not been clearly resolved under EU law . According to the Court of Justice, the EU rules apply where it is “possible to foresee with a sufficient degree of probability on the basis of a set of objective factors of law or of fact that the agreement in question may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States” (neutral interpretation) or where the agreement or practice contributes to the partitioning of the market “thus rendering more difficult the interpenetration of trade which the Treaty is intended to create” (negative interpretation) .

The following two conditions must at least be fulfilled to establish an effect on trade between Member States : a sufficient degree of probability on the basis of a set of objective factors of law or fact ; a direct or indirect, actual or potential influence' on the pattern of trade between Member States.

Agreements or practices, the object of which is the partitioning the markets  affect trade between Member States by their very nature: it is not necessary to verify that there has been any actual effect . The same is true of practices designed to eliminate a competitor established in a Member State . More generally, effect is based on objective factors and the subjective intent of the undertakings concerned is not required .

The probability of an effect on trade depends on several factors which when taken individually, would not necessarily be decisive . The type of agreement or practice, the nature of the products concerned  and the position and size of the undertakings in question  are all criteria of assessment . The courts must evaluate whether the condition pertaining to effect is met by taking account of the economic and legal context (e.g. the existence of a regulation , market characterized by low margins ). On the other hand, there is no requirement that all the clauses of an agreement must affect trade between Member States : the assessment is general. Consequently, the question whether the individual participation of an undertaking in such an agreement could, by itself, restrict competition or affect trade between Member States, account being taken of the undertaking's weak position on the market concerned, is irrelevant .

2) Influence on trade flows between Member States

As a condition for the application of EU law, the effect on trade test is usually fulfilled even if, for the time being, no restriction of competition has been established. It is of no relevance that the agreement or practice leads to a considerable increase in trade between Member States  or is limited to diverting trade from the direction it would normally have taken . The Court of Justice has even stated that the absence of trade between Member States for a product at a specific time does not exclude the possibility of an effect on trade between Member States, where the situation may change from year to year in the light of changes in the conditions or the composition of the market both in the internal market as a whole and in the different national markets . An agreement or practice must be capable of exerting actual or potential influence on intra-community trade. The influence of the agreement or practice must be measured in the light of the reasonably foreseeable future developments of market conditions . EU law is applicable when the agreement or practice is liable to interfere with the natural movement of trade between Member States which would have taken place in the absence of such agreement or practice . The fact that the agreement concerns services related to the exportation from a Member State to countries outside the EEA may affect trade between Member States where it is likely to exert an influence on the behavior of operators established in Member States other than the one at issue .  Similarly, when an undertaking in a dominant position obstructs access to the market by competitors, it makes no difference whether such conduct is confined to a single Member State as long as it is capable of affecting patterns of trade and competition on the internal market .

orsque le détenteur d'une position dominante barre l'accès au marché à des concurrents, il est indifférent que ce comportement ait lieu sur le territoire d'un seul État membre, dès lors qu'il est susceptible d'avoir des répercussions sur les courants commerciaux et sur la concurrence dans le marché intérieur

The influence on trade between Member States may be direct or indirect. When it is the result of a market-sharing agreement  the influence is direct; it is indirect when it concerns products which are not sold on the territory of the Union and where the products constitute the raw material for another product marketed elsewhere in the EU , or are ancillary to such products .

In order for Article 101 TFEU to apply, trade between Member States must be "concerned" even if it develops favorably. See Cases 56/84 and 58/64 Von Gallera v Maitre [1984] ECR 1769. But see also Case 56/65 Société Technique Minière v Maschinenbau Ulm [1966] ECR 337, LawLex200400002665JBJ, which appears to revert to a "negative" interpretation.

The absorbing of the condition of applicability of EU law (effect on trade between Member States) by the basic condition of application of Articles 101 or 102 TFEU (the restriction of competition) can be explained by the instrumental nature of competition law which has a tendency to invert the condition of applicability and the substantive condition of application. Why seek to penalize a practice if it is not certain it harms competition? Can anticompetitive behavior avoid the prohibition simply because the condition for applicability of EU law has not been fulfilled?

Case C-250/92 Gøttrup-Klim and others Grovvareforeninger v Dansk Landbrugs Grovvareselskab [1994] ECR I-5641, LawLex200400002888JBJ.

Trade between Member States will be more particularly concerned by products for which cross-border trade is easy or which are important for undertakings wishing to set up or develop their activity in other Member States. 

See for example Case C-306/96 Javico v Yves Saint Laurent Parfums [1998] ECR I-1983, LawLex200400003612JBJ; Case 22/71 Béguelin Import v G.L. Import Export [1971] ECR 949, LawLex200400002766JBJ

See Cases T-25/95 to 104/95 Cimenteries CBR (SA) v Commission [2000] ECR II-491, LawLex200400003586JBJ.

Case T-251/12 EGL Inc. and others, Judgment of 29 February 2016, LawLex201600000470JBJ; Case T-254/12 Kühne + Nagel International AG, not available in English.

Case 193/83 Windsurfing International v Commission [1986] ECR 611, LawLex200400003547JBJ; Commission Decision No 2002/759/EC of 5 December 2001, Luxembourg Brewers, LawLex200400003555JBJ.

Case C-441/11 P European Commission v Verhuizingen Coppens [2012] NV, LawLex201200002413JBJ. 

Case T-141/89 Trefileurope v Commission [1995] ECR II-791, LawLex200400003654JBJ; Commission Decision No 64/566/EEC of 23 September 1964, Grundig/Consten (not available in English); Case 56/64 and 58/64 Consten v Commission EEC [1966] ECR 556, LawLex200400002598JBJ; Commission Decision No 85/76/EEC of 7 December 1984, Milchförderungsfonds, LawLex200500004295JBJ; Commission Decision No 1999/210/EC of 14 October 1998, British Sugar plc - Tate & Lyle plc - Napier Brown & Company Ltd - James Budgett Sugars Ltd, LawLex200400003604JBJ.

Case 107/82 AEG v Commission [1983] ECR 3151, LawLex200500004025JBJ.

Case T-77/94 VGB and others v Commission [1997] ECR II-759, LawLex200400003640JBJ: in order to assess whether a rule is liable to affect trade between Member States it must be interpreted with regard to the whole of the regulatory framework of which it is part and it is not necessary to examine whether in isolation it would produce such an effect. 

Case 19/77 Miller v Commission [1978] ECR 131, LawLex200500004035JBJ; Case 107/82 AEG v Commission [1983] ECR 3151, LawLex200500004025JBJ.

Case 71/74 Fruit-en Groentenimporthandel and Frubo v Commission [1975] ECR 563, LawLex200400002778JBJ; Cases 209/78 through 215/78 and 218/78 Van Landewyck v Commission [1980] ECR 3125, LawLex200500004028JBJ; Case T-61/89 Dansk Pelsdyravlerforening v Commission [1992] ECR II-1931, LawLex200500004913JBJ; Case T-65/89 BPB Industries and British Gypsum v Commission [1993] ECR II-389, LawLex200400002901JBJ.  

Case T-265/12 Schenker Ltd, Judgment of 29 February 2016, LawLex201600000458JBJ.

Case T-325/16 Ceské dráhy, Judgment of 20 June 2018, LawLex201800001736JBJ.

Case T-86/95 Compagnie générale maritime and others v Commission [2002] ECR II-1011, LawLex200400003557JBJ.

Case 123/83 BNIC v Clair [1985] ECR 391,  LawLex200500004010JBJ; Case 136/86 BNIC v Aubert [1987] ECR 4789, LawLex200400003548JBJ; Cases C-89/85; C-104/85; C-114/85; C-116/85; C-117/85; C-125 to 129/85 Ahlström Osakeyhtiö and others v Commission [1988] ECR 5193, LawLex200500003941JBJ.

Case 31/85 ETA v DK Investment [1985] ECR 3933, LawLex200500003989JBJ; Case T-86/95 Compagnie générale maritime and others v Commission [2002] ECR II-1011, LawLex200400003557JBJ.

Case 56/65 Société Technique Minière v Maschinenbau Ulm [1966] ECR 337, LawLex200400002665JBJ; Case 23/67, Brasserie De Haecht v Wilkin Janssen [1967] ECR 525, LawLex200400002686JBJ; EJC, 1967, 525; Cases 209/78 through 215/78 and 218/78, Van Landewyck v Commission [1980] ECR 3125, LawLex200500004028JBJ; Case 61/80, Coöperatieve Stremsel- en Kleurselfabriek v Commission [1981] ECR 851 LawLex200500004084JBJ. See also Cases 6/73 and 7/73 Istituto Chemioterapico Italiano and Commercial Solvents v Commission [1974] ECR 223, LawLex200400002884JBJ.

Commission Notice No 2004/C 101/07 of 27 April 2004 at pt 24.

A "foreign" factor may be sufficient for there to be a probability of affecting trade between Member States: Case 260/82 NSO v Commission [1985] ECR 3801, LawLex200400003540JBJ: even in the absence of market partitioning, an agreement between undertakings established in a Member State, which covers only the market of that State, affects intra-community trade, where it relates, even partially, to a product from another Member State and even though the participants would have obtained the product from a company of their own group. The fact that the product itself is not marketed in the internal market is irrelevant if the products constitute the raw material for products marketed in the Union: Case 136/86 BNIC v Aubert [1987] ECR 4789, LawLex200400003548JBJ; Cases C-89/85; C-104/85; C-114/85; C-116/85; C-117/85; C-125 to 129/85 Ahlström Osakeyhtiö and others v Commission [1988] ECR 5193, LawLex200500003941JBJ.

For examples of partitioning that may affect trade between Member States: Case 56/65 Société Technique Minière v Maschinenbau Ulm [1966] ECR 337, LawLex200400002665JBJ: exclusive distribution agreements leading to partitioning of markets of certain products; Case 161/84 Pronuptia [1986] ECR 353, LawLex200500004110JBJ: clauses to share markets between franchisors and franchisees or between franchisees, affect intra-Community trade, even if they concern undertakings established in the same country; See Case C-234/89 Delimitis v Henninger Bräu [1991] ECR I-935, LawLex200500003931JBJ: no effect on trade between Member States where an exclusive supply agreement contains an access clause; Commission Decision No 92/204/EEC of 5 February 1992, Building and construction industry in the Netherlands, LawLex200500003836JBJ: the condition for effect is fulfilled when the concerted behavior, which concerns the majority of the constructors of a Member State and virtually all the relevant markets, must have an impact on undertakings in other Member States wishing to bid on the national market in question and gives participants a considerable economic advantage when they bid for markets in other Member States; Cases T-213/95 and T-18/96 SCK and FNK v Commission [1997] ECR II-1739, LawLex200400003638JBJ: imposed prices on the whole of the territory of a Member State have by their very nature the effect of consolidating national partitioning, which impedes the economic interpenetration intended by the Treaty; Case T-62/98 Volkswagen v Commission [2000] ECR II-2707, LawLex200400003580JBJ: measures which have as their object the partitioning of the market of a Member State and cover the whole territory of a Member State, are by nature likely to affect trade between Member States; Commission Decision No 2002/405/EC of 20 June 2001, Michelin, LawLex200400002645JBJ: for a system implemented by the supplier which has as its object preventing supplies to its distributors from competitors established in the internal market thus reducing their capacity to penetrate the national market; Case C-309/99 Wouters and others [2002] ECR I-1577, LawLex200400003517JBJ: a professional regulation is likely to affect trade between Member States where it has the effect of partitioning a market, it applies also to foreigners and where the activity in question is transnational. 

Case T-65/89 BPB Industries and British Gypsum v Commission [1993] ECR II-389, LawLex200400002901JBJ; Case T-148/89 Trefilunion v Commission [1995] ECR II-1063, LawLex200400003651JBJ; Case C-219/95 P Ferriere Nord v Commission [1997] ECR I-4411, LawLex200500003836JBJ.

Commission Decision No 72/457/EEC of 14 December 1972, ZOJA/CSC - ICI (not available in English); Cases 6/73 and 7/73 Istituto Chemioterapico Italiano and Commercial Solvents v Commission [1974] ECR 223, LawLex200400002884JBJ; Case T-69/89 RTE v Commission [1991] ECR II-485, LawLex200400002913JBJ.

Commission Notice No 2004/C 101/07 of 27 April 2004, at pt 25.

European Competition Law

19. Concept of "effect"

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19. Concept of "effect"

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Les notions juridiques connexes

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