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 anticompetitive effect is assessed in a market context. However, a restriction of competition infringes Article 101 TFEU even if the effect is produced on a different market to the one on which the undertaking is established . Thus, the undertaking whose role is to organize meetings or provide services in the context of anticompetitive agreements can come within the scope of Article 101 TFEU b …

Concept of anticompetitive effect

The anticompetitive effect is assessed in a market context. However, a restriction of competition infringes Article 101 TFEU even if the effect is produced on a different market to the one on which the undertaking is established . Thus, the undertaking whose role is to organize meetings or provide services in the context of anticompetitive agreements can come within the scope of Article 101 TFEU by reason of its role as a facilitator, actively and deliberately contributing to a cartel between competing producers even if the latter do not operate on a market distinct from the one on which it operates itself . This is also the case for a broker who facilitates exchanges of information between competing banks, insofar as, according to the EU court, Article 101(1) TFEU does not apply only to the parties to the agreements or concerted practices which are active on the markets affected by them . 

To assess the existence of anti-competitive effects caused by an agreement between undertakings, it is necessary to compare the competitive situation resulting from this agreement with that which would exist in its absence. This so-called “counterfactual” method aims to identify, in the context of the application of Article 101(1) TFEU, the existence of a causal link between, on the one hand, an agreement between undertakings and, on the other hand, the structure or functioning of competition on the market within which this agreement produces its effects . Insofar as the counterfactual scenario aims to give a realistic picture of the market situation as it would have occurred in the absence of the agreement that has been concluded, this scenario cannot be based on events subsequent to the date on which the agreement was concluded, precisely because, at that date, these events have not occurred .

It is not necessary for the restriction to have an adverse effect on an existing situation of competition (existing competition) for it to be caught by the prohibition. It is sufficient that it prevents future competition (potential competition) . Thus, the existence of the appreciable potential or real effects on competition of a settlement agreement and therefore the characterization of it as a “restriction by effect” does not presuppose a finding that, in the absence of that agreement, either the manufacturer of generic medicines who is a party to that agreement would probably have succeeded in the proceedings relating to the process patent concerned, or that the parties to that agreement would probably have concluded a less restrictive settlement agreement . However, the potential effects produced by an agreement can only be taken into account if they result from information which is  objectively foreseeable at the time of its conclusion and not from hypothetical  circumstances . There are different degrees of probability of affecting potential competition. Harm to potential competition is always sanctioned when it is certain . This is generally the case for the ab initio creation of an exclusive trading agreement: unless it can be assumed that no other undertaking could have ensured the distribution of the products, the producer that uses an exclusive distributor inevitably restricts competition that could have existed between distributors. The EU General Court is of the view that measures which lead to the imposition of an additional cost for new entrants within a payment system produce actual or potential anticompetitive effects by forcing them either to increase the price of their cards, or to limit their issuing activity, so that less competitive pressure is exerted on the leading players who can maintain their revenues and the high price of their cards .

EU law sometimes goes further and prohibits purely potential anticompetitive effects . Thus, when the EU authorities prohibit cooperation agreements or the creation of a joint subsidiary because they restrict competition that could have existed on the market if each of the parties had conducted the activity on their own, they make unlawful purely potential anticompetitive effects in the event where the parties were not present on the market before the implementation of the joint interest . According to the Commission, to establish an anticompetitive effect, it is sufficient that due to their experience and capacity, parent companies “might well have [been] led” to directly compete with one another with regard to the product in question, even though they had abandoned all individual research in that domain due to the amount of risk capital which would have to be invested and the technical skills and the possible length of time which would be required before the development could reach a stage where a commercially viable production might result.  

Even though the parties must give their actual consent, the infringement, nevertheless, remains established with respect to those agreements whose effects continue after they have formally ceased to be in force . The supervisory authorities are more interested in the economic consequences of agreements than in their legal form . Thus, price fixing and quota agreements remain contrary to Article 101 TFEU even for the period during which the obligations they contain are said to be “put to sleep” by the parties, insofar as those parties all continue to collectively comply with them . The Commission also only considers that the infringement has ended at the day its decision is adopted when the effects of the agreement have lasted up until that point .

Case T-491/07 CB v Commission, Judgment of 29 November 2012, not available in English. But see Case T-380/10 Wabco Europe and others, Judgment of 16 September 2013, LawLex201300001339JBJ, finding that the exchange of sensitive information relative to a product on a market on which the undertakings having participated in the meeting are not competitors does not in principle have an anticompetitive object or effect on the relevant market.

Case T-27/10  AC-Treuhand v Commission, Judgment of 6 February 2014, not available in English. 

Case C-7/95 P Deere v Commission [1998] ECR I-3111, LawLex200500003921JBJ; Case C-8/95 P New Holland Ford v Commission [1998] ECR I-3175, LawLex200500003922JBJ. 

Commission Decision No 77/160/EEC of 20 January 1977, Vacuum Interrupters Ltd, LawLex200400002392JBJ; No 83/669/EEC of 8 December 1983, Carbon Gas Technologie, LawLex200900003182JBJ.

Case 51/75 EMI Records v CBS United Kingdom [1976] ECR 811, LawLex200400002893JBJ; Case 243/83 Binon v AMP [1985] ECR 2015, LawLex200500004001JBJ; Case T-2/89 Petrofina v Commission [1991] ECR II-1087, LawLex200400002486JBJ; Case T-8/89 DSM v Commission [1991] ECR II-1833, LawLex200500005215JBJ; Case T-327/94 SCA Holding v Commission [1998] ECR II-1373, LawLex200400003610JBJ; Case T-15/89 Chemie Linz v Commission [1992] ECR II-1275, LawLex200500004879JBJ; Case T-12/89 Solvay v Commission [1992] ECR II-907, LawLex200500004831JBJ; Case T-10/89 Hoechst v Commission [1992] ECR II-629, LawLex200500004827JBJ; Case T-13/89 ICI v Commission [1992] ECR II-1021, LawLex200400003679JBJ; Case T-327/94 SCA Holding (Ltd) [1998] ECR p. II-1373, LawLex200400003610JBJ; Case T-45-98  Krupp Thyssen Stainless GmbH [2001], LawLex200400003567JBJ. 

Case 243/83 Binon v AMP [1985] ECR 2015, LawLex200500004001JBJ.

Commission Decision No 69/240/EEC of 16 July 1969, Entente internationale de la quinine (not available in English).

Case T-48/98 Acerinox v Commission [2001] ECR II-3859, LawLex200500005172JBJ.

Case T-180/15 Icap plc, Judgment of 10 November 2017, LawLex201700001819JBJ.

Case C-176/19 P Servier SAS, Judgment of 27 juin 2024, LawLex202400004779JBJ.

Case C-176/19 P Servier SAS, Judgment of 27 juin 2024, LawLex202400004779JBJ; Case C-606/23, Judgment of 5 December 2024, LawLex202500000898JBJ.

Commission decision CE No 92-157 of 17 February 1992, UK Tractors, LawLex200200003961JBJ. For a reminder of the principle, see Case C-606/23, Judgment of 5 December 2024, LawLex202500000898JBJ, which holds that to establish the anti-competitive effect of an agreement, it is sufficient to demonstrate, in accordance with Article 101(1) TFEU, the existence of potential restrictive effects on competition, provided that they are sufficiently appreciable.

Case C-307/18 Generics (UK) Ltd, Judgment of 30 January 2020, LawLex202000000131JBJ.

Case T-691/14 Servier SAS, Judgment of 12 December 2018, LawLex201900001337JBJ.

Case T-35/92 Deere v Commission [1994] ECR II-957, LawLex200400003658JBJ.

Case T-491/07 RENV Groupement des cartes bancaires, Judgment of 30 June 2016, not available in English.

European Competition Law

41. Concept of anticompetitive effect

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Les notions juridiques connexes

41. Concept of anticompetitive effect

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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