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The Modernization of Article 101 and 102 TFEU and Merger Policy over the Last Ten Years

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An agreement does not necessarily have to be a contract in writing.   Agreements can be informal or even surreptitious.   For instance, it was held in Joined Cases C-2/01 P and C-3/01 Bundesverband der Arzneimittel-ImporteureeV and Commission v Bayer [2004] that an agreement in the context of article 101(2): Centres around the existence of a concurrence of wills between at least two parties, the form in which it is manifested being unimportant so long as it constitutes the faithful expression of the parties’ intention. It is obvious from this description of agreement that Article 101(1) has as its central aim the controlling of and prohibiting of collusion of all types that could distort competition.   The ECJ has used the term “ concerted practice” which effectively broadens the meaning of collusion.

In this regard, the ECJ described a concerted practice as a “ form of co-operation between undertakings” from which it can be inferred that an agreement was made that compromises competition. It, therefore, follows that some form of coordination and cooperation is required for ascertaining if the undertakings were colluding or engaging concerted practices.

The criteria of co-ordination and co-operation must be understood in the light of the concept inherent in the provision of the Treaty relating to competition that each economic operator must determine independently the policy which he intends to adopt on the Common Market.   Contact in furtherance of co-ordination and co-operation will typically be manifested in an exchange of information which is conducted intentionally.     However, conduct can also indicate co-operation and coordination if that conduct is such that it can substantiate concerted practices. Concerted practices are easier to discern circumstances where the market is oligopolistic and conduct is uniform.   For example, there is an announcement with respect to pricing so that pricing is transparent which is followed by a uniform change in prices and uniform approaches to pricing so that this uniformity cannot be interpreted as merely coincidental.    

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