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

It is presumed that, whether the consensus necessary for an agreement to be established is implied or not, the participants have freely given their consent to it. There can be no consensus when the cooperation stems from a public regulation or its implementation  and if, had it not been for such regulations and their implementation, “the cooperation […] either would not have taken place or would h …

Free consent

It is presumed that, whether the consensus necessary for an agreement to be established is implied or not, the participants have freely given their consent to it. There can be no consensus when the cooperation stems from a public regulation or its implementation  and if, had it not been for such regulations and their implementation, “the cooperation […] either would not have taken place or would have assumed a form different from that found to have existed” . The agreement must be imposed by the public authorities  through the exercise of irresistible pressures such as the threat to adopt State measures likely to cause them to sustain substantial losses ,  from which the parties are unable to escape for a finding of no restriction on competition . Prior notification , approval  or ratification  of the agreement by the administrative authorities does not alter the fact of the existence of the agreement. The fact that the cooperation was encouraged  or introduced directly by the national authorities  does not justify the setting up of agreements in violation of EU competition rules either.

Similarly, an agreement is not formed when participants are acting under the threat of economic injury from the private sector, provided, however, that they are unable to resist such pressures . Such is the case for undertakings in a position of economic dependence pressured to adopt behavior that goes against its own interests . However, there is no need to consider whether an agreement corresponds to the commercial interest of a party where the Commission has documentary evidence of its anticompetitive nature . Further, acting in a situation of economic dependence is not in itself a circumstance which may exclude the responsibility of a party to the cartel . In addition, an agreement between manufacturers and their suppliers cannot be considered as having been imposed by the latter insofar as it is established that it was concluded as a result of joint negotiations, that it provided a price favoring the manufacturers compared to their competitors, and retaliatory measures were implemented against suppliers who did not comply with the agreed rates . If the agreement is found to exist , the EU authorities take into account the extent of the willingness to participate in the concertation for some of the undertakings when assessing the level of fines .

Free consent has long been assumed in the context of distribution networks. Pressure exerted on distributors did not prevent agreements being found to exist . Only express opposition from the distributors receiving instructions were likely to reverse the presumption of an agreement . Now the agreement between the distributor and the head of a network can no longer be established without proof of the communication to and implementation of the alleged restrictive policy by network members .

Case T-154/98 Asia Motor France and others v Commission [1999] ECR II-1703, LawLex200500005183JBJ: cooperation likely to prevent parallel imports cannot be established between importers of vehicles of certain marks when compliance with a general import quota and sharing of this quota between them is the result of the unilateral will of the authorities of a State; Case 40/73 Suiker Unie and others v Commission [1975] ECR 1663, LawLex200400002777JBJ.

Case 40/73 Suiker Unie and others v Commission [1975] ECR 1663, LawLex200400002777JBJ.

Commission Decision No 82/506/EEC of 15 July 1982, SSI, LawLex200400003541JBJ.

Case T-387/94 Asia Motor France and others v Commission [1996] ECR II-961, LawLex200400003642JBJ.

Commission Decision No 79/68/EEC of 12 December 1978, Kawasaki, LawLex200400003539JBJ.

Case T-357/06 Koninklijke Wegenbouw Stevin BV, Judgment of 27 September 2012, LawLex201700001055JBJ; Case T-558/08 Eni SpA, Judgment of 12 December 2014, LawLex201700001077JBJ.

Case T-192/06 Caffaro Srl, Judgment of 16 June 2011, LawLex201400000152JBJ.

Case T-357/06 Koninklijke Wegenbouw Stevin BV, Judgment of 27 September 2012, LawLex201700001055JBJ, cited above.

Case T-59/99 Ventouris v Commission [2003] ECR II-5257, LawLex200500004867JBJ; Commission Decision No 2003/600/EC of 2 April 2003, French beef, LawLex200500004520JBJ.

Commission Decision No 78/155/EEC of 23 December 1977, BMW Belgium NV and Belgian BMW dealers, LawLex200400002396JBJ, confirmed in Case 32/78 BMW Belgium v Commission [1979] ECR 2435, LawLex200500004092JBJ; Commission Decision No 80/1283/EEC of 25 November 1980, Johnson & Johnson, LawLex200500004074JBJ; No 85/616/EEC of 16 December 1985, Villeroy & Boch, LawLex200400002436JBJ; No 91/335/EEC of 15 May 1991, Gosme/Martell - DMP, LawLex200400002464JBJ.

 Commission Decision No 2001/146/EC of 20 September 2000, Opel, LawLex200500004721JBJ; No 96/478/EC of 10 January 1996, ADALAT, LawLex200500004761JBJ: wholesalers who adhere to an export ban advocated by their respective suppliers are participating in an illegal agreement even though they are acting under the threat of a decrease in supplies.

Commission Decision No 88/86/EEC of 18 December 1987, Fisher-Price/Quaker Oats Ltd - Toyco, LawLex200400002447JBJ; Case T-43/92 Dunlop Slazenger v Commission [1994] ECR II-441, LawLex200500004964JBJ.

TUE, 28 juin 2016, Telefónica SA, aff. T-216-13, LawLex201600001170JBJ, JCP G, 2016, n° 830, obs. BERLIN ; Europe, 2016, n° 296, obs. IDOT ; Contrats Conc. Consom. 2016, n° 219, obs. DECOCQ ; Concurrences 4/2016, 86, obs. CHONE-GRIMALDI ;JECLAP 2016, 527, obs. de PREE et EVANS ; LPA 24 avril 2017, 15, obs. ARHEL : un accord qui est le fruit d'un arrangement commun entre les parties est conclu en toute autonomie lorsqu'aucun élément ne permet d'établir qu'il a été imposé de manière unilatérale par un gouvernement.

Case T-368/00 General Motors Nederland and Opel Nederland v Commission [2003] ECR II-4491, LawLex200500004833JBJ.

Case T-357/06 Koninklijke Wegenbouw Stevin BV, Judgment of 27 September 2012, LawLex201700001055JBJ.

Commission Decision No 82/506/EEC of 15 July 1982, SSI, LawLex200400003541JBJ; No 85/206/EEC of 19 December 1984, Aluminium imports from eastern Europe, LawLex200500004013JBJ; Cases 240/82; 241/82; 242/82; 261/82; 262/82; 268/82; 269/82 Stichting Sigarettenindustrie v Commission [1985] ECR 3831, LawLex200400003566JBJ; Case 260/82 NSO v Commission [1985] ECR 3801, LawLex200400003540JBJ.

Case T-387/94 Asia Motor France and others v Commission [1996] ECR II-961, LawLex200400003642JBJ considering that the undertaking must show that that conduct was unilaterally imposed upon them by the national authorities through the exercise of irresistible pressures.

Cases 43/82 and 63/82, VBVB and VBBB v Commission EEC [1984] ECR 19, LawLex200400003590JBJ; Commission Decision No 84/405/EEC of 6 August 1984, Zinc Producer Group, LawLex200500004388JBJ; 19 December 1984, Case 85/206, LawLex200500004013JBJ; No 85/75/EEC, of 5 December 1984, Fire insurance, LawLex200500004019JBJ, confirmed in Case 45/85, Verband der Sachversicherer v Commission [1987] ECR 405, LawLex200500003946JBJ; Commission Decision No 87/2/EEC of 4 December 1986, Petroleum Exchange of London Limited, LawLex200500004450JBJ; also see Case T-489/09 Leali SpA, Judgment of 9 December 2014, not available in English, stressing that the fact that the ECSC Treaty had required undertakings to publish their price lists so customers could compare prices did not have the effect of authorizing or legitimizing prior agreements between undertakings in the sector.

Commission Decision No 82/897/EEC of 15 December 1982, Toltecs/Dorcet, LawLex200500005309JBJ.

Commission Decision No 84/405/EEC of 6 August 1984, Zinc Producer Group, LawLex200500004388JBJ.

European Competition Law

49. Free consent

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Les décisions de justice citées dans ce paragraphe :

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49. Free consent

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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