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.
Inhaltsverzeichnis (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
- Case Law Analysis
- PART THREE-THE PROPOSED AMENDMENT OF ARTICLE 81
- Arguments For and Against Amending Article 81
Zielsetzung und Themenschwerpunkte (Objectives and Key Themes)
This essay examines the limitations of Articles 81 and 82 of the European Community (EC) Treaty, particularly concerning their ability to address unilateral anticompetitive conduct. The essay argues that Article 81 requires amendment to effectively capture this behavior, which currently falls outside the scope of EC competition law.- The limitations of Articles 81 and 82 in addressing unilateral anticompetitive conduct
- The evolution of the legal definition of "agreement" within the meaning of Article 81 and its impact on the classification of unilateral conduct
- The arguments for and against amending Article 81 to include genuinely unilateral anticompetitive conduct
- The potential effects of amending Article 81 on the scope of Article 82
- The impact of the proposed amendment on vertical agreements and the role of the EC institutions in enforcing competition law
Zusammenfassung der Kapitel (Chapter Summaries)
- Introduction: The essay introduces the concept of unilateral anticompetitive conduct and its limitations within the scope of Articles 81 and 82 of the EC Treaty. It argues that Article 81 requires amendment to effectively address this behavior.
- Part One - Unilateral Anticompetitive Conduct within EC Competition Law: This section analyzes the legal theory of EC competition law, defining the concepts of "agreements" and "concerted practices" under Article 81 and outlining the limitations of both Article 81 and 82 in addressing unilateral conduct. It then focuses on the specific issue of vertical agreements, highlighting the challenges of distinguishing between unilateral and multilateral conduct within this context.
- Part Two - Legal Evolution; Past to Present: This section examines the evolution of case law and Commission decisions regarding the distinction between agreements and unilateral practices under Article 81. It highlights the contrasting approaches of the Commission and the Courts, emphasizing the Commission's initial broad interpretation and its subsequent shift towards a more restrictive approach. The section also analyzes the case law surrounding specific vertical restraints and its impact on the definition of "agreement" under Article 81.
Schlüsselwörter (Keywords)
This essay explores the complex interplay between competition law, unilateral conduct, and vertical agreements, focusing on the limitations of EC competition law in addressing anticompetitive behavior that does not involve direct collaboration. It examines the evolution of case law and Commission decisions regarding the definition of "agreement" under Article 81 and the challenges of distinguishing between unilateral and multilateral conduct within vertical restraints. The essay ultimately argues for a necessary amendment to Article 81 to effectively capture genuinely unilateral anticompetitive practices.- Citar trabajo
- Veronica Hagenfeldt (Autor), 2009, EC Competition Law Essay - Article 81, Múnich, GRIN Verlag, https://www.grin.com/document/169618
