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

An agreement may only qualify for an exemption on condition that it “[allows] consumers a fair share of the resulting benefit”. That requirement means that the contribution to economic progress should not be assessed uniquely from the point of view of the undertakings involved - usually manufacturers - but must also take into account the effects of the agreement relative to the demand from client  …

Fair share of benefit for the consumer

An agreement may only qualify for an exemption on condition that it “[allows] consumers a fair share of the resulting benefit”. That requirement means that the contribution to economic progress should not be assessed uniquely from the point of view of the undertakings involved - usually manufacturers - but must also take into account the effects of the agreement relative to the demand from client undertakings  or final consumers .

Thus, to obtain an exemption, it is not enough that the agreement creates productivity gains, those gains must also lead to an actual or even potential drop in prices . Lower prices are not the only means of increasing user satisfaction though; introducing new products onto the market, improving products  or conditions of distribution , extending and densifying networks , providing more information to consumers , the creation of an after-sales service or a reduction in delivery deadlines, can also be taken into consideration . The fair share of the benefit to the consumer requirement as provided by Article 101(3) TFEU may still be fulfilled even though not all the members of the relevant category of consumers reap the benefit of the disputed practice , or if the beneficial effects are felt in Member States other than the one in which the parties to the agreement are established .

The greater the restriction to competition, the bigger the efficiency gains and their repercussions on consumers must be. Assessing the fair share of the benefit may be based on projections and mere presumptions. Thus, for restructuring agreements, the supervisory authorities accept that anticipated profits (availability of additional resources, restructuring of the sector)  may compensate for immediate losses (price increases, plant closures). Similarly, they consider that an intensification in the play of competition by the penetration of new competitors usually leads to an increase in consumer satisfaction . As a more general rule, any finding of competitive pressure on the relevant market  or buyer power from the parties to the agreement  leads the authorities to conclude that the parties may not retain for themselves all the derived benefit from that agreement. The Commission considers it more likely that consumers will obtain a fair share from efficiency gains made on costs where they apply to the variable rather than the fixed costs . The agreement would however not be regarded as providing an adequate advantage to users if some Union consumers were denied the benefits it provided  or if it resulted in a total elimination of price competition, even where competition in terms of the service provided is maintained . In such cases, the consumer effectively no longer has the choice between purchasing the product at the lowest price and purchasing it at a higher price with the service included. Where a restrictive agreement is likely to lead to higher prices, the Commission's view is that consumers must be fully compensated through an improvement in quality .

Commission Decision No 77/781/EEC of 23 November 1977, GEC-Weir Sodium Circulators, LawLex200500004050JBJ; No 83/390/EEC of 13 July 1983, Rockwell/Iveco, LawLex200400002423JBJ.

Commission Decision No 83/560/EEC of 16 November 1983, Distribution system of Ford Werke AG, LawLex200400002425JBJ.

Commission Decision No 84/380/EEC of 4 July 1984, Synthetic fibres, LawLex200500005394JBJ; No 84/387/EEC of 19 July 1984, BPCL/ICI, LawLex200500004392JBJ; No 87/3/EEC of 4 December 1986, ENI/Montedison, LawLex200500004454JBJ.

Commission Decision No 82/71/EEC of 17 November 1981, Langenscheidt/Hachette, LawLex200500004078JBJ; No 83/390/EEC of 13 July 1983, Rockwell/Iveco, LawLex200400002423JBJ; No 83/668/EEC of 5 December 1983, VW-MAN, LawLex200400002763JBJ.

See, inter alia, Case 26/76 Metro v Commission [1977] ECR 1875, LawLex200400002980JBJ; Commission Decision No 80/917/EEC of 9 July 1980, National Sulphuric Acid Association, LawLex200500005316JBJ; No 82/742/EEC of 29 October 1982, LawLex200500004106JBJ; No 83/390/EEC of 13 July 1983, Rockwell/Iveco, LawLex200400002423JBJ; No 83/668/EEC of 5 December 1983, VW-MAN, LawLex200400002763JBJ; No 83/622/EEC of 6 December 1983, Schlegel/CPIO, LawLex200400002427JBJ; No 83/669/EEC of 8 December 1983, Carbon Gas Technologie, LawLex200900003182JBJ; No 85/615/EEC of 16 December 1985, P&I Clubs, LawLex200400002435JBJ; No 87/100/EEC of 17 December 1986, Mitchell Cotts/Sofiltra, LawLex200500004445JBJ; No 88/88/EEC of 22 December 1987, Olivetti/Canon, LawLex200400002448JBJ; No 88/87/EEC of 22 December 1987, Enichem/ICI, LawLex200500004461JBJ; No 88/330/EEC of 5 May 1988, Bayer/BP Chemicals, LawLex200500004470JBJ.

Commission Decision No 77/781/EEC of 23 November 1977, GEC-Weir Sodium Circulators, LawLex200500004050JBJ; No 80/1332/EEC of 11 December 1980, Vacuum Interrupters Ltd, LawLex200500005281JBJ; No 83/390/EEC of 13 July 1983, Rockwell/Iveco, LawLex200400002423JBJ.

Commission Notice No 2004/C 101/08 of 27 April 2004, on the application of Article 81(3) of the EC Treaty [now 101(3) TFEU], at pt 98.

Commission Decision No 73/323/EEC of 8 October 1973, Prym/Beka, LawLex200400002385JBJ.

Case 26/76 Metro v Commission [1977] ECR 1875, LawLex200400002980JBJ.

Commission Notice No 2004/C 101/08 of 27 April 2004, on the application of Article 81(3) of the EC Treaty [now 101(3) TFEU], at pt 86.

Commission Decision No 1999/421/EC of 26 January 1999, P&O Stena Line, LawLex200400002619JBJ: the creation of a joint undertaking by competing operators qualifies for an exemption where, inter alia, marketing and administrative cost-savings are made to the user's benefit; No 91/301/EEC of 19 December 1990, Ansac, LawLex200500004630JBJ.

Commission Decision No 93/49/EEC of 23 December 1992, Ford Volkswagen, LawLex200500004813JBJ: the association of competing manufacturers within a joint venture, which, thanks to economies of scale, offers versions of differentiated vehicles of high quality at reasonable prices, allows consumers a fair share of the benefit.

Commission Decision No 83/671/EEC of 12 December 1983, International Energy Agency, LawLex200400002430JBJ: exemption for the agreement between oil companies to meet oil supply emergencies by developing an emergency self-sufficiency in oil supplies where consumers will benefit from the available oil redistributed among the participating countries on an equitable basis; No 88/330/EEC of 5 May 1988, Bayer/BP Chemicals, LawLex200500004470JBJ, more extensive product range, which is more modern and gives superior performance and ensures customers a continued supply of the products and adherence to the specifications required; No 91/128/EEC of 15 February 1991, Sippa, LawLex200400002460JBJ; No 94/771/EC of 11 November 1994, Olivetti-Digital, LawLex200500004794JBJ; No 2000/400/EC of 10 May 2000, Eurovision, LawLex200500004715JBJ: exemption for joint exclusive acquisition systems for TV rights for sporting events insofar as they create an increase in coverage and increase the number of sports programs produced and broadcast on television; Case T/131/99 Shaw and Falla v Commission [2002] ECR II-2023, LawLex200500004881JBJ: exemption for a beer supply contract containing exclusive purchasing and non-compete obligations where subsequent improvements in the distribution outweigh any discrimination in the price borne by the distributor; Commission Decision No 2003/778/EC of 27 July 2003, Joint selling of the commercial rights of the UEFA Champions League, LawLex200500004523JBJ: the acquisition of media rights in different rights packages due to a joint selling arrangement ensures that the consumer has live coverage of important games over the course of the season without obliging media operators to obtain all the rights from all the clubs that would be available individually in the absence of the joint selling arrangement.

Commission Decision No 96/180/EC of 16 January 1996, LH/SAS, LawLex200500004758JBJ; No 97/780/EC of 29 October 1997, Unisource, LawLex200400002552JBJ: a joint venture created by several competing telecommunications operators contributes to economic progress when it extends the area for the provision of services to the whole of Europe.

Commission Decision No 75/73/EEC of 13 December 1974, Bayerische Motoren Werke AG, LawLex200700001839JBJ; No 85/77/EEC of 10 December 1984, Uniform Eurocheques, LawLex200500004018JBJ: the Eurocheque system generates a fair share of the benefit for users who are availed of clearing and purchasing facilities within the internal market and enjoy guarantees provided by their own bank; No 97/781/EC of 29 October 1997, Uniworld, LawLex200400002553JBJ: a joint venture created by several competing telecommunications operators benefits consumers when it provides cheaper and faster pan-European services which are more advanced in terms of quality of coverage and continuity; No 1999/695/EC of 15 September 1999, REIMS II, LawLex200400002625JBJ.

Commission Decision No 77/160/EEC of 20 January 1977, Vacuum Interrupters Ltd, LawLex200400002392JBJ; Case 26/76 Metro v Commission [1977] ECR1875, LawLex200400002802JBJ; No 77/781/EEC of 23 November 1977, GEC-Weir Sodium Circulators, LawLex200500004050JBJ; No 79/298/EEC of 17 January 1979, Beecham/Parke, Davis, LawLex200500004049JBJ; No 83/669/EEC of 8 December 1983, Carbon Gas Technologie, LawLex200900003182JBJ; No 86/405/EEC of 14 July 1986, Optical fibres, LawLex200500004441JBJ; Case 75/84 Metro v Commission [1986] ECR 3021, LawLex200500004031JBJ; No 88/88/EEC of 22 December 1987, Olivetti/Canon, LawLex200400002448JBJ.

Case T-131/99 Shaw and Falla v Commission [2002] ECR II-2023, LawLex200500004881JBJ: an overall impact suffices; Case T/193/02, Piau v Commission [2005] ECR II-209, LawLex200500006260JBJ: establishment of a system of qualitative selection for footballers' agents, replacing a quantitative system; Case C/238/05, ASNEF-EQUIFAX [2006] ECR I-11125, LawLex200700000324JBJ. 

Case C-360/92 P Publishers Association v Commission [1995] ECR I-23, LawLex200500005143JBJ.

European Competition Law

74. Fair share of benefit for the consumer

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Les décisions de justice citées dans ce paragraphe :

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74. Fair share of benefit for the consumer

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise