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

If the objective of the restriction is to improve production or distribution of goods or to promote economic progress, it qualifies for the exemption provided in Article 101(3) where it is not only indispensable to the attainment of such objective but also necessary. This condition means that not only should the restrictive agreement itself be reasonably necessary, but that the individual restrict …

Indispensable restriction

If the objective of the restriction is to improve production or distribution of goods or to promote economic progress, it qualifies for the exemption provided in Article 101(3) where it is not only indispensable to the attainment of such objective but also necessary. This condition means that not only should the restrictive agreement itself be reasonably necessary, but that the individual restrictions of competition that flow from the agreement must also be reasonably necessary for the attainment of the efficiencies .

A restriction of competition has a necessary character if more efficiency gains are generated with the agreement or the restriction in place than without it. There must not be any other economically more feasible and less restrictive means of achieving them . The level of independence of the parties is also taken into consideration; the restriction is indispensable when the parties would not be able to attain the same gains individually . Thus, an agreement which makes possible savings in terms of time  or costs  or leads to improved quality  may be judged necessary. This is also the case for agreements ensuring the rationalization of activities in a sector suffering from serious structural overcapacity or authorization, participation and sanction rules which may appear legitimate in that they help to guarantee observance of the principles, values and rules of the game which underpin professional football, in particular the open and meritocratic nature of the competitions concerned, as well as ensuring a certain form of fair redistribution within football . However, an agreement of which the object is to eliminate a competitor from the market cannot be exempted on the grounds that it is contributing to economic progress by preventing the allegedly illegal banking activity of that competitor, insofar as there are less restrictive means of attaining that objective, such as filing a compaint with the relevant authorities . Similarly, agreements between large builders and suppliers which limit the rebates granted to small builders impose restrictions that are not indispensable to the attainment of the economic benefits brought about by the agreements and cannot benefit from an individual exemption . Lastly, according to the Court of Justice, the dissemination of misleading information in respect of a medicinal product cannot be regarded as “indispensable” within the meaning of Article 101(3) TFEU . The restriction must also be proportionate .

Once the necessity of the agreement is established, the competition authorities then assess the indispensable nature of each of the ancillary restraints. The condition is fulfilled if, without the restriction, the efficiency gains resulting from the agreement would not materialize or would be substantially reduced, or if it would make their attainment unlikely. Assessment of indispensability is made within the actual context in which the agreement operates and must in particular take account of the structure of the market, the economic risks related to the agreement and the incentives facing the parties . A non-compete clause is therefore ancillary where its object is to prevent the transfer to a competitor of ideas or strategies that are being developed in a joint venture , or to ensure the sharing of know-how  or of the risks tied to subsequent investments  and where its duration is limited to what is necessary for the attainment of the stated objectives .

See Commission Notice No 2004/C 101/08, OJ of 27 April 2004, Guidelines on the application of Article 81(3) of the EC Treaty [now 101(3) TFEU], at pt 73.

Commission Decision No 83/390/EEC of 13 July 1983, Rockwell/Iveco, LawLex200400002423JBJ, for a joint undertaking which is indispensable to the success of the venture; No 85/77/EEC of 10 December 1984, Uniform Eurocheques, LawLex200500004018JBJ, indispensable character of use by competing banks of a common decision-making body which, inter alia, decides in a direct and uniform manner on the amount of commission to be charged or received by banks for the encashment of guaranteed checks drawn on foreign banks; No 93/174/EEC of 24 February 1993, Tariff structures in the combined transport of goods, LawLex200500004821JBJ, necessity of adopting a common tariff structure for the sale of rail haulage at least for a transitional period. 

Case C-179/16 F. Hoffmann-La Roche Ltd, Judgment of 23 January 2018, LawLex201800000149JBJ.

Its scope and duration must be limited to what is strictly necessary to achieve the stated objective: See No 83/668/EEC of 5 December 1983, VW-MAN, LawLex200400002763JBJ; No 88/555/EEC of 11 October 1988, Continental/Michelin, LawLex200500005411JBJ; Case T-873/16 Groupe Canal + SA, Judgment of 12 December 2018, LawLex201900000325JBJ.

Commission Notice No 2004/C 101/08, OJ C 101 of 27 April 2004, Guidelines on the application of Article 81(3) of the EC Treaty [now 101(3) TFEU], at pt 80.

Commission Decision No 1999/781/EC of 15 September 1999, British Interactive Broadcasting/Open, LawLex200500005276JBJ.

Commission Decision No 83/669/EEC of 8 December 1983, Carbon Gas Technologie, LawLex200900003182JBJ; No 88/88/EEC of 22 December 1987, Olivetti/Canon, LawLex200400002448JBJ.

Commission Decision No 94/823/EC of 12 December 1994, Fujitsu AMD Semiconductor, LawLex200500004795JBJ.

Commission Decision No 83/669/EEC of 8 December 1983, Carbon Gas Technologie, LawLex200900003182JBJ; No 1999/242/EEC of 3 March 1999, TPS, LawLex200500004734JBJ.

Commission Decision No 77/781/EEC of 23 November 1977, GEC-Weir Sodium Circulators, LawLex200500004050JBJ; No 91/562/EEC of 18 October 1991, Eirpage, LawLex200400002469JBJ; No 1999/329/EC of 12 April 1999, P & I Clubs, IGA - P & I Clubs, Pooling Agreement, LawLex200400002958JBJ.

Commission Decision No 2000/182/EC of 14 September 1999, GEAE/P & W, LawLex200400002581JBJ; No 1999/781/EC of 15 September 1999, British Interactive Broadcasting/Open, LawLex200500005276JBJ.

Commission Decision No 81/1066/EEC of 26 November 1981, Sopelem-Vicker, LawLex200300001279JBJ; No 87/103/EEC of 12 December 1986, ABI, LawLex200400003536JBJ.

Commission Decision No 76/172/EEC of 15 December 1977, Bayer/Gist-Brocades, LawLex200400002386JBJ.

See, inter alia, Commission Decision No 87/3/EEC of 4 December 1986, ENI/Montedison, LawLex200500004454JBJ.

Case C-333/21 European Superleague Company SL, Judgment of 21 December 2023, LawLex202400004511JBJ, holding that the existence of objectives, however laudable they may be, do not release the associations that have adopted those rules from their obligation to establish that the pursuit of those objectives translates into genuine, quantifiable efficiency gains and that they compensate  for the disadvantages caused in competition terms.

Case C-68/12 Protimonopolný úrad Slovenskej, Judgment of 7 February 2013, LawLex201300000136JBJ.

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

European Competition Law

72. Indispensable restriction

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72. Indispensable restriction

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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