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

As well as dealing with anticompetitive agreements and decisions of associations of undertakings, Article 101 TFEU also specifically targets concerted practices although it does not define what they are.
The origin of the term “concerted practice” comes from the observation of like behavior on the market. By making the concept of concerted practice distinct from an agreement, the TFEU was able to  …

Constituent elements

As well as dealing with anticompetitive agreements and decisions of associations of undertakings, Article 101 TFEU also specifically targets concerted practices although it does not define what they are.

The origin of the term “concerted practice” comes from the observation of like behavior on the market. By making the concept of concerted practice distinct from an agreement, the TFEU was able to prevent undertakings from circumventing Article 101(1) by resorting to a form of anticompetitive coordination which could not be properly defined as an agreement , the objective being that all economic operators autonomously determine the policies they wish to pursue on the market.

Concerted practices are the result of the coming together of two constituent factors joined by a link of causality, i.e. a generating factor - coordination between the parties realized through contact between them, and an outcome - the cooperation resulting from the coordination and consisting in a modification of the normal conditions of the market . It is both necessary and sufficient that there be, “direct or indirect contact between such operators, the object or effect whereof is either to influence the conduct on the market of an actual or potential competitor or to disclose to such a competitor the course of conduct which they themselves have decided to adopt or contemplate adopting on the market” , which is not the same as adapting one's behavior to market conditions in an intelligent manner. A concerted practice is constituted where “the parties have not agreed or decided in advance among themselves what each will do in the market but knowingly adopt or adhere to some collusive device which encourages or facilitates the coordination of their commercial behavior” .

A concerted action neither implies a conclusive or premeditated agreement nor necessarily the proof of parallel behavior . It must be distinguished from simple parallel behavior devoid of any element of concertation , even though it constitutes a strong indication thereof . In contrast to the more structured nature of an agreement, the concept of a concerted practice does not require the working out of a “plan”  but includes varied forms of “contact” made, - even mere conversations  or negotiations  - the anticompetitive purpose of which is sufficient to characterize the practice regardless of its concrete effects .  Knowledge of the anticompetitive nature of the practice in question from bilateral contacts may suffice .

Case 48/69 ICI v Commission [1972] ECR 619 LawLex200400003459JBJ.

Case C-199/92 P Hüls v Commission [1999] ECR I-4287, LawLex200500003915JBJ.

Case C-199/92 P Hüls v Commission [1999] ECR I-4287, LawLex200500003915JBJ; Case T-16/99 Lögstör Rör v Commission [2002] ECR II-1633, LawLex200500004886JBJ; Commission Decision No 2004/206/EC of 17 December 2002, Flood flavour enhancers, LawLex200400003526JBJ: agreements and concerted actions during regular meetings between major world producers of a product concerning target prices, price rises and customer allocation, are anticompetitive by their object, without it being necessary to consider their actual effects; No 2003/569/EC of 5 December 2001, PO/Interbrew and Alken-Maes, LawLex200500004680JBJ; Case C-609/13 P Duravit AG, Judgment of 26 January 2017, LawLex201700001078JBJ: contact, consisting in an attempt to reach an agreement on prices, constitutes a concerted practice prohibited by Article 101(1) TFEU.

Case T-106/17 JPMorgan Chase & Co, 20 December 2023, LawLex202400000098JBJ.

Case 40/73 Suiker Unie and others v Commission [1975] ECR 1663, LawLex200400002777JBJ; Case T-25/95 Cimenteries CBR (SA) v Commission [2000] ECR II-491, LawLex200400003586JBJ; 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; No 2004/337/EC of 20 December 2001, Carbonless paper, LawLex200500004681JBJ; No 2004/104/EC of 27 November 2002, Methylglucamine, LawLex200500004668JBJ.

Commission Decision No 94/601/EC of 13 July 1994, Cartonboard, LawLex200400003662JBJ; No 2003/437/EC of 11 December 2001, Zinc phosphate, LawLex200400003530JBJ; No 2004/337/EC of 20 December 2001, Carbonless paper, LawLex200500004681JBJ; No 2003/674/EC of 2 July 2002, Methionine, LawLex200400003528JBJ; No 2003/675/EC of 30 October 2002, PO Video Games/ PO Nintendo Distribution/ Omega-Nintendo, LawLex200500004659JBJ; No 2004/104//EC of 27 November 2002, Methylglucamine, LawLex200500004668JBJ; No 2003/569/EC of 5 December 2001, PO/Interbrew and Alken-Maes, LawLex200500004680JBJ; Case T-2/89 Petrofina v Commission [1991] ECR II-1087, LawLex200400002486JBJ; Case T-3/89 Atochem v Commission [1991] ECR II-1177, LawLex200500004653JBJ; Commission Decision No 2005/471/EC of 27 November 2002, Plasterboard, LawLex200700001301JBJ.

Cases 29/83 and 30/83 CRAM v Commission [1984] ECR 1679, LawLex200500004021JBJ.

Commission Decision No 89/190/EEC of 21 December 1988, PVC, LawLex200500003939JBJ.

Especially if it leads to conditions of competition which do not correspond to the normal conditions of the market, having regard to the nature of the products, the size and number of the undertakings, and the volume of the said market: Case 48/69 ICI v Commission [1972] ECR 619, LawLex200400003459JBJ. The parallelism of behavior establishes the concerted action when it is not the result of an intelligent adaptation to market conditions, but is the outcome of contact between the various operators having as its object to effect or influence the behavior of competitors or to reveal one's intended behavior to them: Commission Decision No 86/398/EEC of 23 April 1986, Polypropylene, LawLex200500003987JBJ; 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 40/73 Suiker Unie and others v Commission [1975] ECR 1663, LawLex200400002777JBJ; Commission Decision No 94/601/EC of 13 July 1994, Cartonboard, LawLex200400003662JBJ.

Commission Decision No 86/398/EEC of 23 April 1986, Polypropylene, LawLex200500003987JBJ; No 2003/437/EC of 11 December 2001, Zinc phosphate, LawLex200400003530JBJ.

Commission Decision No 84/405/EEC of 6 August 1984, Zinc Producer Group, LawLex200500004388JBJ: conversations, negotiations and contacts made with the intention of influencing one of the competitor's export sales, or at least putting the other competitor in the picture about such sales so that he could modify his own market behavior accordingly, constitute a concerted practice.

European Competition Law

53. Constituent elements

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

53. Constituent elements

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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