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

A decision of an association of undertakings is more of a type of agreement than a particular form of concertation. Thus, the European authorities do not always make a clear distinction between agreements made within an association and the collective decisions adopted by its members . Statutes and regulations of an association , the binding decisions taken by its managing bodies , the ethical rule …

Concept of decision

A decision of an association of undertakings is more of a type of agreement than a particular form of concertation. Thus, the European authorities do not always make a clear distinction between agreements made within an association and the collective decisions adopted by its members . Statutes and regulations of an association , the binding decisions taken by its managing bodies , the ethical rules governing the professions  and even mere recommendations if they are the “faithful reflection [of the association's] resolve” , have all been classified as decisions of associations of undertakings. Nowadays, the supervisory authorities clearly differentiate between statutes (which characterize agreements between undertakings) and internal regulations and binding measures (which constitute decisions by an association of undertakings) . Circulars and recommendations distributed by associations of undertakings are decisions within the meaning of Article 101 TFEU, regardless of their legal status  or binding nature , where they are in line with the statutes that have been brought to the notice of the members of the association , and accepted and applied by them . On the other hand, an agreement between two inter-trade organizations  or a gentlemen's agreement  concluded between two associations of undertakings are agreements between undertakings if they determine the conduct of the undertakings which the associations represent . Although the existence of obligations - directly binding the associated undertakings - and their effective application leads to the finding of anticompetitive agreement , this requirement is not necessary to declare illegal an agreement between associations .

 Comp. Commission Decision No 82/896/EEC of 15 December 1982, AROW/BNIC, LawLex200500004099JBJ; Case 123/83 BNIC v Clair [1985] ECR 391, LawLex200500004010JBJ.

Commission Decision No 77/722/EEC of 7 November 1977, BPICA, LawLex200400002395JBJ; No 2000/400/EC of 10 May 2000, Eurovision, LawLex200500004715JBJ: the internal regulations of the EBU constitute decisions of an association of undertakings; No 2001/478/EC of 19 April 2001, UEFA's broadcasting regulations, LawLex200400002641JBJ: “The broadcasting regulations are laid down in the internal rules of UEFA. The competent organs of UEFA have adopted these regulations. This is a decision of an association of associations of undertakings within the meaning of Article [101](1)”.

Case 123/83 BNIC v Clair [1985] ECR 391, LawLex200500004010JBJ.

Commission Decision No 2000/117/EC of 26 October 1999, Nederlandse Federative Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie, LawLex200400002574JBJ.

Commission Decision No 89/95/EEC of 19 December 1988, Uniform Eurocheques, LawLex200500004477JBJ.

Commission Decision No 74/433/EEC of 25 July 1974, Frubo, LawLex200400003278JBJ.

Case 71/74 Fruit- en Groentenimporthandel and Frubo v Commission [1975] ECR 563, LawLex200400002778JBJ; Cases T-217/03 and T-245/03 FNCBV and others v Commission [2006] ECR II-4987, LawLex200900000048JBJ: prohibiting an agreement between associations of undertakings under Article [101(1)TFEU], does not require the associations in question to be able to compel their members to fulfill the obligations imposed on them by the agreement.

Cases 209/78 through 215/78 and 218/78 Van Landewyck v Commission [1980] ECR 3125, LawLex200500004028JBJ.

Commission Decision No 1999/267/EC of 7 April 1999, EPI code of conduct, LawLex200400003602JBJ; Case T-144/99 Institut des mandataires agréés v Commission [2001] ECR II-1087, LawLex200500005162JBJ.

Case 45/85 Verband der Sachversicherer v Commission [1987] ECR 405, LawLex200500003946JBJ; Cases 96/82, 97/82, 98/82, 99/82, 100/82, 101/82, 102/82, 104/82, 105/82, 108/82, 110/82 Miele v Commission, LawLex200500004024JBJ.

Case T-61-89 Dansk Pelsdyravlerforening (Association), Judgment of 2 July 1992, LawLex200500004913JBJ; Commission Decision No 2000-117 of 26 October 1999, Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied und Technische Unie, LawLex200400002574JBJ, which held that the articles of association of an association of undertakings constitute an agreement, whereas the internal regulations constitute a decision of the association of undertakings; Case C-124/21 P International Skating Union, Judgment of 21 December 2023, LawLex202400004583JBJ, which states that in order to determine whether a decision of an association of undertakings conferring on that association a power to regulate, monitor and impose penalties which enables it to authorize or prevent access by potentially competing undertakings to a given market on which that association itself carries on an economic activity, must be regarded as having the object or, failing that, to have the effect of preventing, restricting or distorting competition, it is necessary to determine whether this power is governed by transparent, clear and precise material criteria, preventing it from being used arbitrarily, before verifying whether these criteria have been laid down in an accessible form, prior to any implementation of the power they are intended to govern ; Case C-650/22, Judgment of 4 October 2024, not available in English, which classifies as a decision by an association of undertakings the provisions of the FIFA regulations on the status and transfer of players which prevent the national soccer association of which the former club of a soccer player, whose contract has been terminated, is a member, from issuing the international transfer certificate necessary for the player's registration with the new club, and the latter from taking part in soccer competitions on behalf of the new club.

Case 45/85 Verband der Sachversicherer v Commission [1987] ECR 405, LawLex200500003946JBJ: the recommendation adopted by an association of undertakings to coordinate the conduct of its members on the market concerned is a decision by an association of undertakings regardless of what its precise legal status may be.

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; Cases 96/82, 97/82, 98/82, 99/82, 100/82, 101/82, 102/82, 104/82, 105/82, 108/82, 110/82 Miele v Commission, LawLex200500004024JBJ; Commission Decision No 92/568/EEC of 25 November 1992, Distribution of railway tickets by travel agents, LawLex200400003674JBJ; Case T-136/94 Eurofer v Commission [1999] ECR II-263, LawLex200500005260JBJ.

Commission Decision No 85/75/EEC, of 5 December 1984, Fire insurance, LawLex200500004019JBJ.

Cases 96/82, 97/82, 98/82, 99/82, 100/82, 101/82, 102/82, 104/82, 105/82, 108/82, 110/82 Miele v Commission, LawLex200500004024JBJ; Case C-180/98 through C-184/98 Pavlov and others [2000] ECR I-6451, LawLex200400003579JBJ; Commission Decision No 82/371/EEC of 17 December 1981, Navewa-Anseau, LawLex200400002421JBJ; No 92/568/EEC of 25 November 1992, Distribution of railway tickets by travel agents, LawLex200400003674JBJ; Case T-136/94 Eurofer v Commission [1999] ECR II-263, LawLex200500005260JBJ; Case T-325/01 DaimlerChrysler v Commission [2005] ECR II-3319, LawLex200700000257JBJ: recommendations are decisions of associations of undertakings, even if they are not binding, if the participants have complied with them by deciding to monitor, using ghost purchasing by members of an outside agency.

European Competition Law

50. Concept of decision

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

50. Concept of decision

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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