Article 101 [Prohibition of Agreements That Restrict Competition]

Article 101 TFEU is one of the most prominent Treaty provisions on competition in view of the fact that it is quite frequently applied and tends to result in high-profile decisions that often involve the imposition of significant fines. These fines are used to punish those involved in hard-core restrictions, more colloquially referred to as cartels. At the same time, it is a provision that concerns a practice that is the lifeblood of any company in any market: the conclusion of agreements. All agreements seek to coordinate the behaviour of the parties to that agreement. This reduction of the commercial independence or freedom of these parties can be construed as a restriction of competition. Furthermore, these agreements may impact the output, prices or innovation of the products and parties involved, impacting consumer welfare. Ultimately, therefore, competition is a primarily economic phenomenon that can be understood, measured and appraised in myriad ways. However, it is also a concept of law, thus requiring a legal definition. This gnomic nature of competition is compounded by the different conceptions within economics and law and between economics and the legal discipline. By and large, conceptions of competition are the remit of the debate concerning the “more economic” or more “effects-based” approach to Article 101 TFEU and the more legalistic interpretation of this provision.