Art. 101 TFEU: Anti-Competitive Agreements

Introduction

Article 101 of the Treaty on the Functioning of the European Union (TFEU) prohibits agreements, decisions by associations of undertakings, and concerted practices that have as their object or effect the prevention, restriction or distortion of competition within the internal market and that may affect trade between Member States. In simple terms, it targets collusion that weakens competitive pressure, such as price-fixing, market sharing, or resale price maintenance.

The provision applies to “undertakings” (any entity engaged in economic activity) and has a wide reach: arrangements concluded outside the EU can still be caught if they produce effects within the EU. Agreements that infringe Article 101(1) are void to the extent of the restriction (Article 101(2)), but an agreement may still be lawful if it meets the conditions for exemption in Article 101(3).

This guide sets out the elements, common infringements, the exemption framework, enforcement, and practical steps for compliance and case analysis.

What You’ll Learn

• The elements of an infringement under Article 101(1): undertakings, agreement/decision/concerted practice, effect on trade between Member States, and restriction by object or effect
• How to distinguish restrictions “by object” (e.g., price-fixing) from those assessed “by effect”
• Typical horizontal and vertical restrictions, including information exchange and resale price maintenance
• How Article 101(3) exemptions work, plus the role of block exemptions and the de minimis notice
• Key cases shaping the application of Article 101 and what they mean for practice
• Enforcement by the European Commission and national competition authorities, fines, leniency and private damages
• Practical steps to assess risk, structure agreements, and run compliance programmes

Core Concepts

Undertakings, Agreements and Concerted Practices

• Undertaking: Any entity engaged in economic activity, regardless of legal form or how it is financed. A parent and its wholly controlled subsidiary form a “single economic unit”, so they cannot “agree” with themselves.
• Agreement/Decision: The concept is broad and includes formal contracts, informal understandings, and decisions by trade associations or similar bodies. A “meeting of minds” can be enough; written contracts are not required.
• Concerted practice: Coordinated behaviour short of an agreement. Direct or indirect contact that reduces strategic uncertainty about competitors’ conduct can breach Article 101. Even a single meeting that discloses future pricing intentions can infringe.

Practical point: Contact with competitors about future prices, output, customers, territorial allocation, or bidding plans is high risk.

Restrictions “by Object” vs “by Effect”

• By object: Some conduct is so harmful that it is presumed to restrict competition without detailed market analysis. Examples include horizontal price-fixing, bid rigging, market/customer allocation, and output limitation. In vertical settings, resale price maintenance (RPM) is typically treated as a by-object restriction.
• By effect: If the restriction is not by object, the authority must show anti-competitive effects. This usually involves defining the market, assessing market power, analysing the counterfactual, and showing appreciable harm.

Courts have stressed that “by object” is interpreted strictly. Only conduct revealing a sufficient degree of harm qualifies. Ambiguous arrangements often require an effects analysis.

Effect on Trade Between Member States and Appreciability

• Effect on trade: The arrangement must be capable of affecting inter-State trade. This is a jurisdictional threshold, not a separate competition test. Factors include the nature of the agreement, the parties’ market position, the reach of the restriction, and whether it hinders cross-border trade.
• Appreciability: Trivial arrangements fall outside Article 101(1). The Commission’s de minimis notice offers guidance:
  • Horizontal agreements: safe harbour at combined market share ≤10%
  • Vertical agreements: safe harbour at market share ≤15%
  • No safe harbour for hard-core restrictions (e.g., price-fixing, market sharing, RPM)

Article 101(3): The Exemption Framework

An agreement caught by Article 101(1) may still be lawful if the four cumulative conditions in Article 101(3) are satisfied:

1. The agreement improves production or distribution, or contributes to technical or economic progress (efficiency gains).
2. Consumers receive a fair share of the resulting benefits.
3. The restrictions are indispensable to achieve these benefits.
4. The agreement does not eliminate competition for a substantial part of the products/services in question.

Key points:

• The burden of showing that these conditions are met lies with the undertaking seeking the exemption.
• Block Exemption Regulations (BERs) create safe harbours for categories of agreements if market-share thresholds are met and no hard-core restrictions are present. Relevant instruments include:
  • Vertical Block Exemption Regulation (EU) 2022/720
  • Horizontal block exemptions for R&D and specialisation (updated in 2023)
• Even within a block exemption, hard-core restrictions such as RPM or horizontal price-fixing remove the protection.

Enforcement, Penalties, and Private Actions

• Who enforces: The European Commission and national competition authorities (NCAs) within the European Competition Network (ECN) apply Article 101 under Regulation 1/2003.
• Penalties: Fines can reach up to 10% of the undertaking’s worldwide turnover. Teams and individuals should also consider director disqualification and criminal liability risks in some Member States (under national law).
• Leniency and settlements: Cartel participants may obtain immunity or reductions in fines by self-reporting and cooperating (leniency), or by settling investigations.
• Private enforcement: The Damages Directive (2014/104/EU) strengthens actions for damages in national courts, including disclosure rules, limitation periods, and the binding effect of final infringement decisions of NCAs in certain circumstances. Parties harmed by infringements can claim compensation.
• Legal effect: Under Article 101(2), agreements infringing Article 101(1) are void to the extent of the restriction.

Territorial Reach and Extraterritorial Effects

Article 101 applies where conduct has foreseeable, immediate, and substantial effects within the EU. Cartels formed outside the EU can be fined if EU trade is affected. This “effects” approach has been upheld in cartel cases involving worldwide markets.

Key Examples or Case Studies

Gas Insulated Switchgear cartel (EU Commission decision; upheld on appeal)

• Context: A cartel allocating projects and fixing prices for gas-insulated switchgear, involving firms from inside and outside the EU.
• Key point: Arrangements formed outside the EU were caught due to their effects within the EU.
• Application: A non-EU meeting or agreement can still breach Article 101 if EU trade is harmed.

T-Mobile Netherlands (C‑8/08, EU:C:2009:343)

• Context: Competitors met once and discussed reducing dealer remuneration.
• Key point: A single meeting can amount to a concerted practice; disclosure of sensitive future plans may be a by-object restriction.
• Application: Avoid competitor contacts about future pricing/terms; a one-off exchange can be enough.

Consten & Grundig (Joined Cases 56 & 58/64)

• Context: Exclusive distribution with clauses granting absolute territorial protection and blocking parallel imports.
• Key point: Vertical restraints that partition the internal market can infringe Article 101; the agreement affected trade between Member States.
• Application: Clauses that isolate national markets (e.g., bans on passive sales) are high risk.

Resale Price Maintenance (RPM) and the Vertical Block Exemption

• Context: Agreements where suppliers fix minimum or fixed resale prices.
• Key point: RPM is generally a by-object restriction and a hard-core breach under the Vertical Block Exemption Regulation, removing safe harbour protection.
• Application: Use recommended or maximum resale prices only if they are genuinely non-binding and do not function as fixed or minimum prices in practice.

Courage Ltd v Crehan (C‑453/99)

• Context: A party to a restrictive agreement sought damages.
• Key point: Individuals and businesses can claim damages for losses caused by infringements of EU competition law, even if they were party to the agreement (subject to conditions).
• Application: Consider follow-on claims where the Commission or an NCA has found an infringement; preserve evidence early.

Practical Applications

• Initial screening questions

  • Are the parties “undertakings”? Is there an agreement, association decision, or concerted practice?
  • Could the arrangement affect trade between Member States?
  • Does the conduct look like a by-object restriction (e.g., price-fixing, market sharing, RPM)?
  • If not by object, is there likely appreciable anti-competitive effect?

• Contract drafting and distribution design

  • Avoid RPM, output limits, and territorial/customer allocation.
  • For selective distribution, define objective quality criteria and avoid absolute bans on passive sales. Platform restrictions must be justified and proportionate to product characteristics.
  • Use recommended or maximum resale prices carefully; monitor implementation to avoid de facto minimum pricing.

• Information exchange

  • Prohibit sharing of future prices, output, capacity, margins, customer lists, or detailed future strategies with competitors.
  • If benchmarking is needed, use aggregated, historical, and sufficiently anonymous data collected by an independent third party.

• Trade associations and meetings

  • Have a clear agenda; stop discussions if competitively sensitive topics arise; leave and have your objection recorded if the discussion strays into risky territory.
  • Circulate accurate minutes, avoid informally “aligning” commercial conduct.

• Applying Article 101(3)

  • Identify concrete efficiency gains (e.g., cost savings, improved quality, faster innovation), show pass-on to consumers, and ensure the restriction is indispensable and does not remove residual competition.
  • Check whether a block exemption applies, and confirm market-share thresholds and the absence of hard-core restrictions.

• De minimis and risk calibration

  • Consider market shares against de minimis thresholds. Remember: no safe harbour for hard-core restrictions.

• Investigations and leniency

  • If a potential cartel is uncovered, stop the conduct immediately, preserve evidence, seek legal advice, and evaluate leniency or settlement options quickly.

• Private enforcement readiness

  • Preserve documents and data; assess exposure to follow-on damages claims; consider the pass-on defence and contribution claims against co-infringers.

Summary Checklist

• Confirm: undertakings, agreement/decision/concerted practice, effect on trade between Member States
• Classify the restriction: by object (cartel-type; RPM) or by effect (requires analysis)
• Test appreciability: market shares; de minimis (no shelter for hard-core restrictions)
• If caught by 101(1), assess 101(3): efficiencies, fair share for consumers, indispensability, residual competition
• Consider block exemptions (Vertical, R&D, Specialisation) and their conditions
• Remember 101(2): anti-competitive clauses are void to that extent
• Enforcement: Commission/NCAs, fines up to 10% worldwide turnover, leniency/settlements
• Private actions: Damages Directive, disclosure, limitation, joint and several liability
• Drafting tips: avoid RPM and market partitioning; manage information exchange risks; document compliance

Quick Reference