Article 81 (agreements and concerted practices)
Article 81 EC prohibits agreements and concerted practices which prevent, restrict or distort competition, insofar as they may affect trade between Member States, unless justified by improvements in production or distribution in accordance with Article 81(3).
This article is numbered 81 in the 1997 consolidated version of the EC Treaty. It was Article 85 in the 1957 Treaty of Rome.
This page provides information on the structure of Article 81, block exemptions and Commission notices and links to related material on the Reckon site.
The structure of Article 81
Article 81 comprises three paragraphs. Article 81(1) sets out a prohibition in the following terms:
(1) The following shall be prohibited as incompatible with the common market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market, and in particular those which:
(a) directly or indirectly fix purchase or selling prices or any other trading conditions;
(b) limit or control production, markets, technical development, or investment;
(c) share markets or sources of supply;
(d) apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;
(e) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.
Article 81(2) makes prohibited agreements void and thereby unenforceable:
(2) Any agreements or decisions prohibited pursuant to this Article shall be automatically void.
Article 81(3) provides a possible justification for certain agreements that would otherwise be prohibited:
(3) The provisions of paragraph 1 may, however, be declared inapplicable in the case of:
- any agreement or category of agreements between undertakings;
- any decision or category of decisions by associations of undertakings;
- any concerted practice or category of concerted practices,
which contributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, and which does not:
(a) impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives;
(b) afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question.
Council Regulation 1/2003 provides for the application of the Article 81. In particular, it provides that the Article 81(1) prohibition does not apply to any agreement that satisfies the Article 81(3) conditions, without any need for notification of the agreement to the authorities or any declaration of inapplicability of Article 81(1).
Block exemptions and Commission notices
- Commission notice on the effect on trade concept contained in Articles 81 and 82 (16 pages, PDF)
This notice issued in 2004 sets out the Commission's understanding of the law as to whether EC competition law or national competition law (if there is any) is applicable to any particular conduct or agreement, drawing on case law showing that the effect on cross-border trade within the European Union has to be appreciable for EC law to apply. There is no equivalent appreciability requirement under Article 87, reflecting the fact that there is no need to choose between domestic and EC law in the context of State aids. This concept of appreciability for the purpose of determining the applicability of EC law is not the same as the application of the de minimis non curat lex doctrine to find that some agreements do not infringe Article 81 (on which see below).
- Commission notice on agreements of minor importance which do not appreciably restrict competition under Article 81(1) (de minimis) (3 pages, PDF)
This notice issued in 2001 sets out the Commission's understanding of the law on restrictive agreements and concerted practices which are not prohibited by Article 81(1) in accordance with the de minimis non curat lex doctrine. This concerns agreements and practices whose anti-competitive object or effect is so minor that the law ignores it. The notice lists some market share thresholds below which the Commission thinks that the de minimis doctrine will generally apply.
- Vertical block exemption (5 pages, PDF) and related Commission notice (44 pages, PDF)
This block exemption was issued in 1999, replacing narrower block exemptions for distribution arrangements.
- Commission notice on Article 81(3) (22 pages, PDF)
This notice issued in 2004 (when Council Regulation 1/2003 came into force) sets out the Commission's understanding of the law on the Article 81(3) justification.
- Other relevant regulations and notices (on the DG Competition website)
Related material on the Reckon site
- Bayer (Adalat)
Leading case on the concept of agreement under Article 81.
- The beer tie and competition law
Annotated list of references on the application of Article 81 to "beer tie" arrangements between public houses and their beer suppliers.
- "Unfair competition?"
Reckon's guide to complaining about anti-competitive conduct or regulations.
- Related statutory provisions:
Article 82 (abuse of a dominant position);
Article 86 (application to public services and fiscal monopolies)
Competition Act 1998 (UK statute extending the prohibition to cases which only affect trade within the United Kingdom, subject to some exclusions)
This page is managed by Reckon LLP. Users are encouraged to contribute relevant views and links. Use the "Edit this page" or "Add a comment" button above to edit the text or to add comments and notes. Advice on making contributions (including trackback) is in the Guidelines.
Last changed by 82.35.63.45 at 9:55 PM on Thursday 31 January 2008.