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

Article 101(1)(a) TFEU expressly prohibits agreements which, “directly or indirectly fix purchase or selling prices or any other trading conditions”. Such agreements or practices are particularly serious because pricing freedom is an essential component of free competition. Price-fixing agreements are considered to be the most harmful . Their obviously anticompetitive object  suffices to establish …

Conditions for prohibition

Article 101(1)(a) TFEU expressly prohibits agreements which, “directly or indirectly fix purchase or selling prices or any other trading conditions”. Such agreements or practices are particularly serious because pricing freedom is an essential component of free competition. Price-fixing agreements are considered to be the most harmful . Their obviously anticompetitive object  suffices to establish their unlawfulness, without any need to consider their real effects . It is irrelevant whether the prices are actually applied in practice .

The object of the agreement may be price itself - minimum  or maximum  imposed prices, price alignment between competitors , maintenance of jointly fixed prices , commissions , common price lists , royalties  -, or related matters such as product or service costs , margins  or discounts . The ban on price-fixing agreements also covers collusion concerning the setting of a part of the final price .

The per se prohibition for price-fixing agreements can be excluded in certain cases. The EU authorities may grant an exemption for a price-fixing agreement , when it is indispensable for the achievement of certain advantages, such as an improvement of services to the benefit of users  or substantial savings in operating costs . However, there must be no elimination of competition in respect of a substantial part of the services concerned .

See Commission Notice No 2011/C 11/01 of 14 January 2011, at pt 3, stating that such agreements are likely to produce negative effects on the market and pt 234 recalling that price fixing is one of the major competition concerns arising from agreements between competitors; Regulation No 1218/2010, Article 4, which classifies specialization agreements having as their oblect the fixing of prices when selling the products to third parties as a hardcore restriction to which the block exemption cannot apply.

Commission Decision No 86/398/EEC of 23 April 1986, Polypropylene, LawLex200500003987JBJ; No 98/247/EC of 21 January 1998, Alloy surcharge, LawLex200500004749JBJ.

Commission Decision No 2003/300/EC of 8 October 2002, IFPI "Simulcasting", LawLex200400003533JBJ: collective management companies jointly pre-determining a unique national copyright royalty level for the implementation of a new service.

Commission Decision No 85/615/EEC of 16 December 1985, P&I Clubs, LawLex200400002435JBJ; No 1999/695/EC of 15 September 1999, REIMS II, LawLex200400002625JBJ; No 2004/139/EC of 23 October 2003, REIMS II renotification, LawLex200500004528JBJ; No 94/985/EEC of 21 December 1994, Far Eastern Freight Conference, LawLex200400003552JBJ; Case T-373/10 TUE Villeroy & Boch Austria GmbH, Judgment of 16 September 2013, not available in English: competitors agreeing on the passing-on of the increase in their costs constitutes an anticompetitive practice, even if it could have been interpreted as a predictable commercial response  n the case of increase in the costs of raw materials or distribution, insofar as such exchanges remove the uncertainty as to whether they will be absorbed or passed on, in part or wholly, to their customers.

Commission Decision No 78/59/EEC of 2 December 1977, Centraal Bureau voor de Rijwielhandel, LawLex200400002402JBJ; No 78/670/EEC of 20 July 1978, Fedetab, LawLex200500004087JBJ; Cases 209/78 through 215/78 and 218/78, Van Landewyck v Commission [1980] ECR 3125, LawLex200500004028JBJ.

See, Case 260/82 NSO v Commission [1985] ECR 3801, LawLex200400003540JBJ; Case T-213/00 CMA CGM and others v Commission [2003] ECR II-913, LawLex200400003543JBJ; Cases T-5/00 and T-6/00 DEP Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission [2003] ECR II-5761, LawLex200500004837JBJ: monitoring by a wholesalers' professional association of discounts granted by some members to final customers.

Commission Decision No 98/247/EC of 21 January 1998, Alloy surcharge, LawLex200500004749JBJ; Cases T-45/98 and T-47/98 Krupp Thyssen Stainless v Commission [2001] ECR II-3757 LawLex200400003567JBJ.

Commission Decision No 84/191/EEC of 30 March 1984, Nuovo Cegam, LawLex200500004114JBJ: indispensable character of the joint fixing by a consortium of insurance companies of the tariff of basic premiums constitutes an indispensable restriction within the meaning of Article 101(3) TFEU, insofar as the members retain the freedom to fix their commercial premium; No 89/512/EEC of 19 July 1989, Dutch banks, LawLex200400002449JBJ: indispensable nature of agreements on inter-bank commissions which do not eliminate competition for a significant part of relevant services, and improve banking services to the benefit of users; No 1999/329/EC of 12 April 1999, P & I Clubs, IGA - P & I Clubs, Pooling Agreement, LawLex200400002958JBJ: necessary character of the clause providing for a common coverage level to give a minimum level of coverage in the context of a claim-sharing system; Case C-266/96 Corsica Ferries France v Gruppo Antichi Ormeggiatori del porto di Genova and others, LawLex200400002937JBJ: exemption for the price fixing agreement where rates are calculated on the basis of a mathematical formula to which are applied various correction factors related to the characteristics of each port; Commission Decision No 91/329/EEC of 30 April 1991, Scottish Nuclear, Nuclear Energy Agreement, LawLex200400002463JBJ: exemption for the price - and quota-fixing agreement, which does not go beyond what is essential for the necessary adjustments of the undertakings concerned to new situations and retains the possibility for operators to act independently and competitively in their relations with clients and relative to their production; ; Commission Decision No 2002/914/EC of 24 July 2002, Visa International - Multilateral Interchange Fee, LawLex200500004657JBJ: relative to an interchange fee commission for a payment card scheme.

Commission Decision No 89/512/EEC of 19 July 1989, Dutch banks, LawLex200400002449JBJ: exemption for agreements on inter-bank commissions where they are indispensable in character, do not eliminate competition for a substantial part of relevant services and improve banking services to the benefit of users.

Commission Decision No 87/103/EEC of 12 December 1986, ABI, LawLex200400003536JBJ: agreement between several banks and financial institutions within an organization, providing for the joint and uniform fixing of commissions and value dates.

Commission Decision No 84/191/EEC of 30 March 1984, Nuovo Cegam, LawLex200500004114JBJ: indispensable character of the joint fixing by a consortium of insurance companies of the tariff of basic premiums constitutes an indispensable restriction within the meaning of Article 101(3) TFEU, insofar as the members retain the freedom to fix their commercial premium.

Commission Decision No 74/292/EEC of 15 May 1974, Agreements between manufacturers of glass containers, LawLex200500005280JBJ: agreement between shipping companies aimed at jointly fixing selling prices and other trading conditions; No 89/515/EEC of 2 August 1989, Welded steel mesh, LawLex200400002450JBJ: setting forth the principle according to which price-fixing agreements cannot qualify for the exemption under Article 101(3) TFEU due to their particularly serious nature. 

Case 246/86 Belasco and others v Commission [1989] ECR 2117, LawLex200500003932JBJ: relative to a cooperative association.

Commission Decision No 72/22 of 16 December 1971, Vereeniging van Cementhandelaren (not available in English); No 74/431/EEC of 23 July 1974, Papiers peints de Belgique, LawLex200400003281JBJ; No 78/59/EEC of 2 December 1977, Centraal Bureau voor de Rijwielhandel, LawLex200400002402JBJ: rules of an association of manufacturers, retailers, intermediaries and repairers which provides the setting by manufacturers of retail and wholesale prices or makes price reductions to customers for older models subject to prior authorization by the association; Case 123/83 BNIC v Clair [1985] ECR 391, LawLex200500004010JBJ, anticompetitive object of the agreement setting a minimum price for a product in order to make it mandatory for all economic operators on the market; Commission Decision No 89/44/EEC of 12 December 1988, Publishers Association/Net Book Agreements, LawLex200500004472JBJ, agreements between competing publishers preventing them from adapting conditions to the commercial potential on the market where books have a fixed resale price

Commission Decision No 93/438/EEC of 30 June 1993, CNSD, LawLex200400002489JBJ.

Commission Decision No 73/109/EEC of 2 January 1973, European sugar industry, LawLex200400002383JBJ; No 85/206/EEC of 19 December 1984, Aluminium imports from eastern Europe, LawLex200500004013JBJ; No 1999/60/EC of 21 October 1998, Pre-Insulated Pipe Cartel, LawLex200400003603JBJ; No 2000/117/EC of 26 October 1999, Nederlandse Federative Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie, LawLex200400002574JBJ; No 2003/382/EC of 8 December 1999, Seamless steel tubes, LawLex200400002596JBJ; No 2002/742/EC of 5 December 2001, Citric acid, LawLex200400003554JBJ; Case T-141/94 Thyssen Stahl v Commission [1999] ECR II-347, LawLex200500005212JBJ: unlawful collusion between competing producers to not increase prices; Cases T-5/00 and T-6/00, DEP Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission [2003] ECR II-5761, LawLex200500004837JBJ: system of exchange of information on rebates, price, margins and turnover.

Case T-566/08 Total Raffinage Marketing, Judgment of 13 September 2013, LawLex201400000009JBJ.

Case 311/85 VVR v Sociale Dienst van de Plaatselijke en Gewestelijke Overheidsdiensten [1987] ECR 3801, LawLex200500003944JBJ; Commission Decision No 87/13/EEC of 11 December 1986, Belgische Vereniging der Banken/Association Belge des Banques, LawLex201400000474JBJ; No 92/212/EEC of 25 March 1992, Eurocheque: Helsinki Agreement, LawLex200400003677JBJ; No 1999/687/EEC of 8 September 1999, Nederlandse Vereniging van Banken, LawLex200400002624JBJ, No 2002/914/EC of 24 July 2002, Visa International - Multilateral Interchange Fee, LawLex200500004657JBJ.

Case 246/86 Belasco and others v Commission [1989] ECR 2117, LawLex200500003932JBJ: adoption by several producers within a cooperative of a common price list, supplemented by the distribution of price increases according to products and measures relating to the discount rate to apply.

European Competition Law

80. Conditions for prohibition

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

80. Conditions for prohibition

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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