
Contents
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I. The Regulatory Framework Applying to the Enforcement of Competition Rules against Cartels I. The Regulatory Framework Applying to the Enforcement of Competition Rules against Cartels
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A. Article 101(1) TFEU—The Prohibition Rule A. Article 101(1) TFEU—The Prohibition Rule
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(1) A concurrence of wills between several independent undertakings (1) A concurrence of wills between several independent undertakings
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(a) Independent undertakings (a) Independent undertakings
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(b) Concurrence of wills (b) Concurrence of wills
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(2) The Agreement Must Have the Object or Effect to Restrict Competition (2) The Agreement Must Have the Object or Effect to Restrict Competition
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(3) A restriction may ‘affect trade between Member States within the internal market’ (3) A restriction may ‘affect trade between Member States within the internal market’
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(a) Restriction ‘within the internal market’ (a) Restriction ‘within the internal market’
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(b) Restriction that may ‘affect trade between Member States’ (b) Restriction that may ‘affect trade between Member States’
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B. Article 101(2) TFEU—The Rule of Nullity B. Article 101(2) TFEU—The Rule of Nullity
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C. Article 101(3) TFEU—The Exception Rule C. Article 101(3) TFEU—The Exception Rule
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D. Congruence with Economic Analysis D. Congruence with Economic Analysis
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II. The Institutional Framework Applying to the Enforcement of Competition Rules against Cartels II. The Institutional Framework Applying to the Enforcement of Competition Rules against Cartels
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A. From Regulation 17/62 to Regulation 1/2003 A. From Regulation 17/62 to Regulation 1/2003
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B. The Interplay between the Commission, the NCAs, and the National Courts under Regulation 1/2003 B. The Interplay between the Commission, the NCAs, and the National Courts under Regulation 1/2003
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(1) The interplay between the Commission and the NCAs within the ECN (1) The interplay between the Commission and the NCAs within the ECN
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(a) Mechanisms designed to ensure the consistent application of EU competition law (a) Mechanisms designed to ensure the consistent application of EU competition law
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(b) Mechanisms designed to address the risk of jurisdictional overlaps (b) Mechanisms designed to address the risk of jurisdictional overlaps
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(c) Exchanges of information within the network (c) Exchanges of information within the network
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(d) ‘Ne bis in idem (d) ‘Ne bis in idem
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(2) The interplay between the Commission and the national courts (2) The interplay between the Commission and the national courts
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(a) Measures designed to prevent national courts from adopting decisions contrary to a Commission decision (a) Measures designed to prevent national courts from adopting decisions contrary to a Commission decision
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(b) The cooperation between the Commission and the national courts (b) The cooperation between the Commission and the national courts
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3 The Regulatory and Institutional Framework of EU Cartel Law
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Published:November 2020
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Abstract
This chapter deals with the institutional and regulatory framework that applies to cartels in the European Union (EU), going over both the substantive and procedural rules. The key legal basis for the prosecution of cartels resides under Article 101(1) of the Treaty on the Functioning of the European Union (TFEU), as interpreted by the case law of the EU courts. Article 101 TFEU is a three-pronged provision. First, the chapter shows how Article 101(1) TFEU establishes a prohibition rule providing that any agreement between undertakings which may affect trade between Member States and which restricts competition is to be deemed incompatible with the internal market. Next, the chapter takes a look at how Article 101(2) TFEU declares that agreements deemed incompatible pursuant to Article 101(1) TFEU are null and void. The ways in which Article 101(3) TFEU embodies an exception to the default prohibition rule, which defuses the application of Article 101(1) for agreements that bring a positive net contribution to consumer welfare, is also discussed.
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