Despite the ambitious efforts of Article 81 to catch as much anticompetitive conduct as possible through its broadly defined “agreements” and “concerted practices”, the title statement is nevertheless correct in stating that genuinely unilateral conduct escapes its scope. By analysing the limitations of Articles 81 and 82 EC, Part 1 of the essay will establish what constitutes genuinely unilateral anticompetitive conduct that slips through the net of both Articles. However, it is not only the direct limitations of Article 81 that render it incapable of catching unilateral conduct, but also the problematic issue regarding the “exact delimitation of the concept of an ‘agreement’ within the meaning of Art 81(1), and the distinction between such an agreement and unilateral conduct”. This paper shares the view expressed in the title statement; Article 81 will require an amendment if it is to catch more unilateral conduct because its current flaws prevent it from achieving more. In order to justify this stance, this paper shall in Part 2 and Part 3 conduct a thorough investigation and evaluation of the legal evolution of how the European Courts and the Commission have determined where the borderline lies between unilateral conduct in vertical restraints and between an ‘agreement’ within the meaning of Article 81. As will be shown, the EC institutions – especially the Courts – have recently become more restrictive in their definition of what constitutes an agreement under Article 81. This development has had the regrettable result of allowing even more unilateral conduct to go uncaught. As a result of both the direct limitations of the Articles and of the now more restricted definition applied to an agreement, an amendment of Article 81 is in fact the only way in which this unilateral anticompetitive behaviour could be brought within the scope of EC competition law. Lastly, the essay disagrees with the notion that the proposed amendment would have the effect of encroaching on the provisions of Article 82, as it would target only genuinely unilateral conduct which by definition also escapes the provisions of Article 82.
Table of Contents
Introduction
Part One – Unilateral Anticompetitive Conduct within EC Competition Law
Legal Theory of EC Competition Law
Definitions and Limitations of Articles 81 and 82
Establishing the Focus; Article 81 and Vertical Agreements
Part Two – Legal Evolution; Past to Present
Summary of Broad Trends
Path 1 – General Agreement and Continuous Commercial Relations
Path 2 – Conduct of the Parties of a General Agreement
Part Three – Legal Reform; An Evaluation
Conclusion
Objectives and Topics
This essay explores the regulatory gap within EU competition law, specifically focusing on how genuinely unilateral anticompetitive conduct by non-dominant undertakings currently escapes the prohibitions of Article 81 EC. The research aims to evaluate the legal evolution of the distinction between an "agreement" and unilateral behavior, ultimately arguing for an amendment to Article 81 to effectively address this regulatory shortcoming.
- Limitations of Articles 81 and 82 EC in capturing unilateral conduct.
- The evolution of the "two path approach" in interpreting continuous commercial relations.
- The judicial shift toward a more restrictive definition of an "agreement."
- The significance of the "Invitation Principle" in modern competition law.
Extract from the Book
Path 1 – General Agreement and Continuous Commercial Relations
Path 1 used to be the primary manner in which apparently unilateral behaviour was ultimately interpreted as an agreement under Article 81 in the context of continuous commercial relations between a manufacturer and its distributors governed by a general agreement. Competition law authorities formally applied a formalist approach, whereby the Courts and the Commission considered that the resellers that were “party to a general agreement were deemed to accept future anti-competitive policies or ‘unlawful’ interpretations of that agreement by the manufacturer”. In this sense, the competition authorities focused entirely on the provisions of the general agreement, rather than looking at the actual conduct and manifestations of the supposed agreement; the signing of a general agreement was equated to agreeing to any future unlawful anticompetitive policies that the manufacturer might pursue, without the actual need of establishing either express or tacit acquiescence of the resellers.
Summary of Chapters
Introduction: The introduction outlines the central thesis that Article 81 requires an amendment to effectively capture unilateral anticompetitive conduct that currently escapes its scope.
Part One – Unilateral Anticompetitive Conduct within EC Competition Law: This section establishes the legal framework and limitations of Articles 81 and 82, identifying why non-dominant, unilateral behavior remains outside the reach of existing competition rules.
Part Two – Legal Evolution; Past to Present: This chapter analyzes how the European Courts and the Commission have shifted their interpretation of "agreements" over time, moving from a formalist approach to a more restrictive, effects-based assessment.
Part Three – Legal Reform; An Evaluation: This part evaluates the implications of the current legal evolution and argues that a formal amendment to Article 81 is the only viable path to rectify existing regulatory flaws.
Conclusion: The conclusion synthesizes the findings, reiterating that despite the legal challenges, an amendment is necessary to address behavior that currently lies beyond the reach of EC competition law.
Keywords
Article 81 EC, Article 82 EC, Competition Law, Unilateral Conduct, Vertical Agreements, Agreements, Concerted Practices, European Courts, European Commission, Market Integration, Legal Evolution, Invitation Principle, Tacit Acquiescence, Parallel Trade, Antitrust
Frequently Asked Questions
What is the primary focus of this essay?
The essay examines how genuinely unilateral anticompetitive conduct by non-dominant undertakings currently evades the scope of Article 81 EC, and argues for a legislative amendment to address this issue.
What are the central themes of the work?
The core themes include the limitations of Articles 81 and 82, the evolution of judicial interpretations regarding "agreements," and the challenges of distinguishing between unilateral behavior and prohibited concertation in vertical commercial relationships.
What is the main objective or research question?
The main objective is to determine how the definition of an "agreement" has evolved and to justify why an amendment of Article 81 is required to capture anticompetitive behaviors that currently "slip through the net."
What scientific method does the author employ?
The author employs a legal research method, focusing on an investigation and evaluation of case law and Commission decisions, tracing the shift in interpretations from formalist approaches to more nuanced, effects-based analyses.
What topics are covered in the main section?
The main section covers the legal theory of EU competition law, the evolution of the "two path approach" to interpreting business relations, and the modern application of the "Invitation Principle" by the Courts.
Which keywords best characterize this work?
Key terms include Article 81 EC, unilateral conduct, vertical agreements, competition law, legal evolution, and the Invitation Principle.
How does the author define the "Invitation Principle"?
The Invitation Principle is the requirement that for an agreement to be established through tacit acquiescence—especially when the conduct is disadvantageous—the manufacturer must have extended an express or implied invitation to its partners to pursue the policy jointly.
Why does the author conclude that an amendment is necessary despite judicial shifts?
The author argues that while the Courts have moved toward more restrictive and sensible definitions of agreements, these shifts make it even harder to catch unilateral conduct, thereby necessitating a formal amendment to the treaty to ensure such behavior is addressed.
- Quote paper
- Veronica Hagenfeldt (Author), 2009, EC Competition Law Essay - Article 81, Munich, GRIN Verlag, https://www.hausarbeiten.de/document/169618
