EU COMPETITION LAW - General Scheme

5 important questions on EU COMPETITION LAW - General Scheme

What is a horizontal agreement?

A horizontal agreement is created between undertakings operating at different levels in the market, example, agreements between producers AND distributors.

What if there is no effect of restriction on competition between MS?

It will be a matter of national law alone.
***Thus, there is a jurisdictional boundary between EU law and national law when it comes to whether the decision of undertakings/an association of undertaking/concerted practice has effect between MS.

Societe Technique Miniere v Maschinenbau Ulm GmbH (case 56/65)

Traditionally, it has been broadly interpreted by the Commission and the EU Courts to enable them to enforce Article 101 and Article 102.

Held: An agreement was capable of affecting trade between MS if, on the basis of objective legal or factual criteria, it allows one to expect that it will exercise a direct or indirect, actual or potential, effect on the flow of trade between MS.
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Case C-501/06 P GlaxoSmithKline

Object = regard must be had to the content of its provisions, the objectives it seeks to attain and the economic and legal context of which it forms a part.

O2 (Germany) GmbH (case T-328/03)

In establishing whether or not the effect of an agreement is anti-competitive, it is necessary to consider the "counter-factual".
Q: What would have happened in the absence of agreement?

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