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 EU authorities traditionally consider that there can be no restriction on a market where competition is already eliminated entirely independently of the action of the participants in an agreement . This is the case when the play of competition is eliminated by the effects of measures taken by public authorities. According to the Court of Justice, a national law that excludes all possibility of …

Potential competition

The EU authorities traditionally consider that there can be no restriction on a market where competition is already eliminated entirely independently of the action of the participants in an agreement . This is the case when the play of competition is eliminated by the effects of measures taken by public authorities. According to the Court of Justice, a national law that excludes all possibility of competition is a ground for excluding liability . On the other hand, potential competition can exist on a market from the expiry of the deadline for Member States to transpose a liberalization directive into national law .

Even where an agreement is by its nature manifestly contrary to Article 101 TFEU, it can only be penalized if the law has allowed a sufficient “degree of competition” to subsist on the market . In effect, in spite of the public intervention, where there remains an area of existing  or potential competition on the market in question or on a neighboring market , the agreement is caught by Article 101(1) TFEU. This is thus the case where, in spite of a statutory ban on selling at prices higher than the maximum price, producers retain the option of creating a price differential between their products and those of their competitors , dispose of a certain amount of freedom in setting their selling prices , or have a broad margin for maneuver when performing obligations imposed on them by legislation . Competition is also able to be restricted when the price controls in question do not prevent competition by innovation . The protection of the uncertainty that subsists as to volumes sold per week seems particularly necessary where there is a common organization of the market providing for a regime based on quarterly import quotas, which contributes to a certain degree of transparency on the market and permits the conclusion that the formation of prices does not answer completely to the free play of competition .

The demonstration of a situation of potential competition must be supported by a set of concordant factual elements taking into account the structure of the market as well as the economic and legal context governing its operation . Thus, the absence of actual or potential competition on a market may be due to the existence of a de facto or de jure monopoly  where this is favored by the legal exemption available for certain market-sharing agreements . However, the absence of a legal monopoly does not mean that there exists competition capable of being restricted; the possibility must be real and concrete and not merely abstract and theoretical for undertakings to compete with each other or for a new entrant to penetrate the market  and compete with the established undertakings . However, it is not necessary to demonstrate with certainty that the undertakings would have entered the market and that that entry would inevitably have been successful . Thus, to establish the existence of potential competition between the patent holder of an originator drug about to expire and manufacturers of generic drugs, the Commission may rely on a set of indicia such as the investments made by the latter to ensure the production and marketing of generic drugs, the steps taken in order to obtain a marketing authorization, the subjective assessment of the manufacturer of the originator drug relative to the threat posed by these steps and the perception of the manufacturers of generic drugs with respect to the contestability of its patents, the possibility for these manufacturers to use other processes than those covered by the patent which are commercially viable and non-infringing goods, to modify an existing marketing authorization or to switch to another producer in the case of risk of patent infringement, and especially, the conclusion of an agreement to delay the entry on the market of the generic drugs . It is necessary and sufficient that this body of evidence demonstrates the existence of real and concrete possibilities of entering the market within a sufficiently short period of time, without having to examine whether the routes to the market identified are economically viable or all effectively practicable . The existence of a non-compete clause which prohibits preparatory steps in one of the markets it covers does not prevent the presence of potential competition from being established, since it is important to determine whether the actual entry of an operator is possible, whether such entry occurs during the period of application or after the clause has expired, provided that it takes place within a timeframe which is capable of exerting competitive pressure on the operator already present on the market .

Article 101 TFEU only applies to sectors open to competition, having regard to its own conditions of application relative to the effect on trade between Member States and repercussions on competition: Case T-360/09 E.ON Ruhrgas AG and E.ON AG v Commission, Judgment of 29 June 2012, LawLex201300001048JBJ

Case C-198/01 CIF [2003] ECR I-8055, LawLex200500004590JBJ: the undertakings concerned cannot be exposed to penalties, either criminal or administrative, in respect of past conduct where the conduct was required by the law. 

Case T-588/08 Dole Food Company Inc., Judgment of 14 March 2013, LawLex201400000175JBJ.

Case C-331/21 EDP - Energias de Portugal SA, EDP Comercial - Comercialização de Energia SA, MC retail SGPS SA and Modelo Continente Hipermercados SA, Judgment of 26 October 2023, LawLex202300012732JBJ: evidence of a subjective nature, such as the mere willingness of an undertaking not present on the relevant market to enter it, or the perception of that undertaking by an undertaking already active on that market, cannot constitute independent, decisive or indispensable evidence of a situation of potential competition, but can support objective elements tending to demonstrate the real and concrete possibilities for an undertaking not present on the market to enter it.

For a monopoly conferred by a patent, see Case T-472/13 H. Lundbeck A/S, Judgment of 8 September 2016, LawLex201600001398JBJ; Case T-470-13 Merck KGaA, Judgment of 8 September 2016, LawLex201600001399JBJ.

See the competitive situation on the French and German gas markets before the liberalization directive of 1998, Case T-360/09 E.ON Ruhrgas AG and E.ON AG v Commission, Judgment of 29 June 2012, LawLex201300001048JBJ and Case T-370/09 GDF Suez SA, Judgment of 29 June 2012, LawLex201200002341JBJ. 

Case T-475/14 Prysmian SpA, Judgment of 12 July 2018, LawLex201800001061JBJ and on appeal, Case C-176/19 P Servier SAS, Judgment of 27 June 2024, LawLex202400004779JBJ, finding that an agreement which is designed to protect the European producers in their own territories from competition from other foreign producers can only escape the prohibition if insurmountable barriers to entry to the European market exist which rule out any potential competition from those foreign producers; Case C-307/18 Generics (UK) Ltd, Judgment of 30 January 2020, LawLex202000000131JBJ.

Case T-360/09 E.ON Ruhrgas AG and E.ON AG, cited above; Case T-691/14 Servier SAS, Judgment of 12 December 2018, LawLex201900001337JBJ and on appeal, Case C-176/19 P Servier SAS, Judgment of 27 June 2024, LawLex202400004779JBJ, holding that to be considered a potential competitor, it is necessary and sufficient to have real and concrete possibilities of entering the relevant market, and not to be the first to implement the most economically viable strategy possible.

Case T-472/13 H. Lundbeck A/S, Judgment of 8 September 2016, LawLex201600001398JBJ; Case T-470-13 Merck KGaA, Judgment of 8 September 2016, LawLex201600001399JBJ; Case C-307/18 Generics (UK) Ltd, Judgment of 30 January 2020, LawLex202000000131JBJ.

Case T-472/13 H. Lundbeck A/S, Judgment of 8 September 2016, LawLex201600001398JBJ; Case T-470-13 Merck KGaA, Judgment of 8 September 2016, LawLex201600001399JBJ; Case T-691/14 Servier SAS, Judgment of 12 December 2018, LawLex201900001337JBJ, cited  above; and on appeal, Case C-176/19 P Servier SAS, Judgment of 27 June 2024, LawLex202400004779JBJ; T-679/14 Teva UK Ltd, Judgment of 12 December 2018, LawLex201900002064JBJ: judgments upheld in Cases C-586/16 P, C-611/16 P,  C-614/16 P and 601/16 P, LawLex202100003269JBJ, LawLex202100001619JBJ, LawLex202100001867JBJ and LawLex202100001863JBJ, Judgments of 25 March 2021; Case C-307/18 Generics (UK) Ltd, Judgment of 30 January 2020, LawLex202000000131JBJ.

Case C-586/16 P Sun Phamaceutical Industries Ltd, Ranbaxy (UK) Ltd, LawLex202100003269JBJ, Case C-611/16 P  Xellia Pharmaceuticals ApS and Alpharma LLC, LawLex202100001619JBJ, Case C-614/16 P Merck KGaA et Generics (UK) Ltd, LawLex202100001867JBJ, Case C-601/16 P Arrow Group ApS and Arrow Generics Ltd LawLex202100001863JBJ, Judgments of 25 March 2021.

Case T-181/22 Pharol, SGPS (SA), Judgment of 2 October 2024, LawLex202400007275JBJ, which held that although each operator has a monopoly on the provision of call termination services on its own network, this does not mean that there is no competition for the provision of these services, so that without the non-competition clause prohibiting preparatory steps for entry into one of the markets it covers, an alternative operator would have been able to increase its customer base to the detriment of operators already present on the market, thus competing with them for customers and, consequently, for the supply of call termination services to those customers.

Case T-360/09 E.ON Ruhrgas AG and E.ON AG, LawLex201300001048JBJ.

Case 40/73 Suiker Unie and others v Commission [1975] ECR 1663, LawLex200400002777JBJ: “a system, which is designed to consolidate a partitioning of national markets by means of national quotas” that “leaves in practice a residual field” comes “within the provisions of the rules of competition”; see also Case T-344/17 Latam Airlines Group SA and Lan Cargo SA, Judgment of 30 March 2022, LawLex202200002105JBJ, which reminds us that the behavior must not only be condoned or encouraged by State coercion, but made mandatory under the regulatory framework of the country in question.

Cases T-374/94, T-375/94, T-384/94, T-388/94 European Night Services and others v Commission [1998] ECR II-3141, LawLex200400002947JBJ.

Case T-65/99 Strintzis Lines Shipping v Commission [2003] ECR II-5433, LawLex200500004869JBJ: law applicable only to domestic but not international maritime links.

Commission Decision No 82/506/EEC of 15 July 1982, SSI, LawLex200400003541JBJ; Cases 240/82 through 242/82; 261/82; 262/82; 268/82; 269/82 Stichting Sigarettenindustrie v Commission [1985] ECR 3831, LawLex200400003566JBJ; Case T-168/01 GlaxoSmithKline Services v Commission [2006] II-2969, LawLex200700000304JBJ.

Cases T-202/98; T-204/98; T-207/98 Tate & Lyle and others v Commission [2001] ECR II-2035, LawLex200400003574JBJ.

Cases 209/78 through 215/78 and 218/78 Van Landewyck v Commission [1980] ECR 3125, LawLex200500004028JBJ; Case T-513/93 Consiglio Nazionale degli Spedizionieri Doganali v Commission [2000] ECR II-1807 LawLex200400003519JBJ.

Case T-168/01 GlaxoSmithKline Services v Commission [2006] II-2969, LawLex200700000304JBJ.

European Competition Law

47. Potential competition

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

47. Potential competition

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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