Effect on trade under EU competition law

The following Competition practice note provides comprehensive and up to date legal information covering:

  • Effect on trade under EU competition law
  • The Commission Notice
  • The process
  • The concept of 'trade'
  • What kind of effect on trade is required?
  • The notion of 'may affect'
  • The concept of 'appreciability'
  • Agreements and practices

Effect on trade under EU competition law

Article 101(1) TFEU and Article 102 TFEU will only apply to market conduct (whether agreements/concerted practices or unilateral conduct) that may appreciably affect trade between EU Member States. This amounts to a jurisdictional consideration—determining whether EU or national competition law applies to the behaviour in question.

Where there is no 'effect on trade' between Member States, national competition law may apply—for example, the national competition law prohibitions in France will apply where conduct may affect trade exclusively within France.

The European Commission (Commission) and the EU Courts have given the inter-state clause a wide interpretation, with the implication that Article 101(1) TFEU and Article 102 TFEU will apply to national agreements or conduct where there is some foreclosure effect or impact on imports. In practice, this has proven to be a low hurdle to pass.

In addition, this inter-state requirement is of less significance as all Member States now have competition laws that are modelled on EU law meaning there is no major practical difference as to whether EU or some other national Member State law applies—a price fixing cartel will be illegal under both EU and national law.

The Commission Notice

In 2004, the Commission published a Notice on the 'effect on trade' concept. The Notice provides non-binding guidance (supplementing existing case law) setting out how the Commission will

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