European Union Law and Concerted Practices

The European Courts of Justice and legal experts from all over the globe have talked a lot about the idea of concerted practices. There have been numerous attempts to define the terminology, despite the fact that there isn’t a singular, widely accepted definition. For instance, the ECJ stated that a concerted practice “by its very nature does not have all the elements of a contract but may, inter alia, arise out of co-ordination which becomes apparent from the participant’s behavior,” in the case of Imperial Chemical Industries Ltd v. Commission (the dyestuffs case). ”Furthermore, concerted practice can also be defined as a type of arrangement between two or more parties that falls short of the conventional form of contract in the strict sense but when perceived from the day to day transactions, can be seen as substituting cooperation for the risks of competition.This, in essence, means that concerted practice is a form of informal agreement or a quasi-contract.

However, it is worth noting that the salient feature of agreements is that it denotes the intention of parties to engage in a given transaction after one party makes an offer which is subsequently accepted by another party. Conventionally, acceptance is usually expressly granted, but at times it can be construed from the conduct of the parties. All in all, concerted practice tends to be manifested in instances where their parties to a given transaction do not have an express agreement. Due to the fact, there is a thin line between concerted practices and legally enforceable contracts; one needs to distinguish the two concepts carefully. The ambiguous nature of the term concerted practices was first manifested in the Wood pulp case when Advocate General Darmon stated that according to him, the definition of concerted practices was still not clear even after he had made numerous attempts to deconstruct it.

The Meaning of Concerted Practice within Article 101 TFEC

The European Communities (EC) or what is otherwise known as the European Economic Community (EEC) came as a result of the Treaty establishing the European Economic Community (TEEC) also referred to as the Treaty of Rome. One of the objectives of the TEEC was to put in place a single market where the Member States could engage in economic activities across their borders. Later on the Treaty on the Functioning of the European Union (TFUE) was enacted in order to meet the objectives that had been laid down in the TEEC.

Article 101 (1) of the TFUE outlaws any agreement or concerted practice between undertakings that is likely to interfere with trade within the EC. Furthermore, the above provision limits the applicability of agreements or concerted practices that are intended to distort, restrict or prevent competition. It is worth noting that the category of agreements that have been prohibited by Article 101 are generally unenforceable and expose the parties to third-party actions for damages in national court within European Economic Area (EEA).

According to Wessely (2001), for concerted practice to be manifested, the common intention of the respective parties needs to be evident. A closer evaluation of the concerted practice, as outlined in Article 101 TFEU, notes that the concept mirrors the US concept of antitrust. This point of view was reiterated at the European Court of Justice in Case 48/69 and in the joined cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85 by Advocates-General Mayras and Darmon respectively. Moreover, in the ICI case, it was stated that concerted practice is deemed to be evident in instances when the conduct of parties to a transaction can only be deduced from their common intention.

How Agreement and Concerted Practice Relate

There is a proximate relationship between agreement and concerted practice. However, it should be noted that even though these two terms are closely related, there is a slight difference between them. The disparity arises because, in the conventional agreements, the common intention is usually framed in a way that results in legal relations. On the other hand, concerted practices do not result in legally binding relations and therefore are not framed in a manner that can be construed as resulting in binding obligations. The requirement for intention to be framed in ways that create legation relations was an issue that the ECJ had deliberated on in various cases. This issue was initially raised in the Chemiefarma case, and this resulted in the reversal of the precedence that had been set in the Quinine case.

In the Chemiefarma case, the Commission was of the considered view that both the signed and unsigned documents could be construed as the evidence of the agreement. Moreover, in as much as no legal obligations stemmed out of the document that was not signed, there was a written clause in it that required any disputes to be referred to arbitration. The court however pronounced itself on the matter and stated that the informal agreement among the producers could legally be enforced (although the framers of the agreement stated that it did not). This affirmation consequently meant that the informal agreement was legally binding between the parties. In light of the foregoing, therefore, it is evident that the Chemiefarma case and the FEDETAB case prove that having a common intention is not an essential requirement in order to make an agreement legally with regards to the provisions contained in Article 101 TFUE.

In most cases, the inherent perception that an agreement is only limited to transactions where the intention has been expressly stated as imputing legally binding obligations creates a void that is filled by the concept of concerted practice that encompasses parties’ intention that is not legally binding. As stated earlier, in the Dyestuff case, concerted practice is an agreement that is yet to embrace all the salient features of a legally binding contract. Therefore in as much as the parties to an agreement might have the intention, as long as they have not reduced it in writing so that legal obligations are created, the courts will prima facie construe the arrangement as a concerted practice. It is worth noting that concerted practices usually are unenforceable in court. Moreover, while contracts ideally impute legal responsibilities on the parties the same cannot be extended to concerted practices.

The ideology of collusion plays a major role in determining the limitation governing Article 101 TFEU. This Article is only applicable to agreements between deeds, decisions of specified undertakings, and other practices which may be concerned with these. As such these treaties, decisions or any practices that are concerned with these decisions are considered methods of collision as they involve two or more parties in accordance with the court of first instance (CFI). It is evident that the existence of two or more parties is a requirement for the application of Article 101 TFEU. This position was outlined in the Bayer case. Furthermore, in the US antitrust law, collision is also part of the agreement as two or more parties that had agreed to perform a particular task are expected to do precisely that.These collusions are usually left in an open-ended form in the agreements. Through the cases, the court has tried to provide a precise definition of these terms with no luck, which has contributed to concerns raised by Lidgard on how collusive terms have been addressed.

According to Wessely, the concept of collusion lacks appropriate delineations. Moreover, according to Black, the words ‘come to lack conceptual unity’ have been used in contradictory ways by both the European Court of Justice and other domestic courts. Jakobsen and Brogerg viewed this law as being unreasonable and unclear because, on the one hand, it advocated for agreements that are unlawful while on the other hand, it promoted lawful acts. The position of this law is slightly better in the US due to their efforts to come up with a satisfactory definition for concepts regarding these treaties. In light of the foregoing, the only thing that is clear is the fact that unilateral actions are not considered as agreements.

Furthermore, according to Advocate General Darmon, courts should not engage in the theorising of these concepts unless in isolated cases where certain legal aspects are at stake and one is interested in seeking clarification. Just because concerted practice falls under Article 101 TFEU does not necessarily mean that it has been prohibited by this Article. This merely suggests that the Article contains rules that govern its assessment. This among other clarifications makes the advocacy of concepts of collision tolerable.

Agreement

In early cases, it was noted that there were challenges in demystifying the salient features of an agreement. This point of view stems out of the fact that the parties during these earlier years were cooperative in notifying their engagements to the Commission. Parties involved in various undertakings were cognizant of the fact that there were specific agreements which were prohibited. However gradually people who engaged in various undertakings began hiding their existence. This was the biggest undoing since the Commission acted as an impartial umpire who ensured that all parties played by the rules. Furthermore, it should be noted that when the undertakings are not openly acknowledged, there are often challenges in finding agreement conceptions.

The Meaning of Agreement within Article 101 TFEU

The meaning of the term ‘agreement’ in the European Union law is similar to that written in the law of contract. Beatson in his description concluded that ideally a contract involved at least two different parties with an outward expression of a similar goal. This goal can either be to make a profit, to eradicate an evil or to enhance an aspect of the society that the parties feel is not doing well According to Fried, the agreements essentially focus on the willingness of the two parties to engage in a particular transaction. Quite frankly, it is evident that Article 101 TFUE revolves around the meaning of agreement and decisions. Waelbroeck and Frignani explain that Article 81 EC (currently Article 101 TFEU) forbade anticompetitive behaviour in cases whereby it emanated from a matter that the two parties had agreed on. According to Goyder, Article 81 EC reaches an agreement when the consensus is satisfactory. The CFI judgment confirmed that for an agreement to be meaningfully based on Article 81 EC, the undertakings must have initially expressed their combined intentions based on how they plan to conduct themselves on the market. Aside from common intention, there must be proof of the agreement within the concepts described under the collusion Article.

Proof of Agreement

In Article 101 TFEU or any other valid contract, a collective decision or agreement is essential. In a contract, this mutual decision is based on the offer given by one party (offeror) and an acceptance of the offer by the other party (offeree). The two essential requirements of making a valid contract that is offer and acceptance were also employed in clarifying the criteria for common intention in Article 81 EC. Written evidence was also used to show the existence and acceptance of the offer made. These essential elements of a contract were also established from documents showing the evidence of previous meetings. Another concept that comes into a play in relation to the term agreement is referred to as collusive tendering. Collusive tendering is a method that does not give the customer the complete autonomy to choose their preferred vendor. What tends to happen at times is that suppliers engage in certain agreements among themselves so that all of them with the exclusion of one, charges exorbitant rates when bidding for tenders. The customer in most cases would go to the supplier who placed the lowest bid. Collusive tendering is some form of manipulation, and it was very rampant in the UK. This practice was unearthed at one point when written offers in response to an invitation made to West Midlands were discovered.

It is worth noting that parol evidence can also recognise the existence and acceptance of an offer. However, words alone cannot justify the existence of an offer in the absence of evidence. Written, as well as parol evidence, can be tendered by a third party when they are testifying on the existence of an offer or acceptance in a given contractual dispute. Furthermore, the acceptance of an offer requires the justification of the same evidence through a detailed explanation. In most cases, inconsistent evidence arouses questions on the authenticity of the evidence and parol.

Offers and the acceptance of offers made by undertakings are usually considered separate from already made offers and accepted offers. At times, undertakings do not decide to take part in some transactions voluntarily but are forced to do so after being threatened. Coercion can be distinguished from other transaction based on the limitations of the agreements. In typical contracts, coercion is classified as a vitiating factor. The same rationale is also applicable since coercion essentially employs threats of violence or sanctions in order for an undeserving act to rise at the expense of a well deserving one. Coercion does not provide the limitations for accepting an offer as long as it has been approved, even in the case of unwillingness.

There is no need for an agreement within the boundaries of Article 101 TFEU to meet all the requirements in the contract. In Sandoz, the goods supplied were accompanied with an invoice that documented the standardised terms which were inclusive of the prohibition of the exportation of the goods. This ban was considered as part of the agreement by the Commission. Sandoz argued that Article 81 EC made the terms of the agreement unenforceable. The Court confirmed that it was unnecessary for an agreement to be bound by the national law.

Inference from Conduct

Direct observation cannot be used to study an event in the absence of an offer proof of its acceptance. For this reason, it is possible to conclude that both the existence of an offer and its acceptance rely on the conducts of the market. The considerations arising from offers or acceptance rely on whether the aspects of the treaty are being viewed in two different perspectives.

Inference of Offer from Conduct

The circumstances from which it is appropriate to deduce an offer was clarified in Bayer. Bayer AG, a pharmaceutical company responsible for the production of Adalat, calcium antagonist used in the management of cardiovascular diseases and sold in wholesale stores. The price of this drug between 1989 and 1993 in had a range of 24% and 55% lower in France and Spain as compared to the UK. Because of this price difference, these drugs were purchased in France and Spain and sold again in the UK. This trend led to the monitoring of the market by Bayer in an effort to identify the source of the imports. This was followed by a reduction in wholesale supplies that were sent to Spain and France. This action forced Spain and France to use the remaining supplies for the benefits of their own country as opposed to exportation needs. A written evidence or parole had not been offered to regulate the exportation of these products. The Commission tried to deduce the existence of the offer from initial conduct. Bayer’s argued that the strategy did not require the participation of other parties and as such, it was wrong to conclude that other parties had been invited to participate in the same.

Unilateral Conduct

According to Bayer, the unilateral action is not an agreement in any way. Conduct is therefore defined as being unilateral when its actions do not necessitate the participation of other parties or undertakings. For this reason, it is impossible to conclude that an offer was based on a conduct when its aim can be achieved without the involvement of other parties.

Apparently Unilateral Conduct

These are the conducts that appear unilateral, but their aims cannot be achieved without the participation of other parties. AEG could not achieve its aims unilaterally without the corporation of retailers. After heated discussions, the Advocate General found out that the likelihood of renewing the advertising campaign had been reduced. Aside from this, unilateral conduct can incorporate the use of small, ineffective talk such as the announcement of an offer long before its implementation which then creates a point of concentration. In a case whereby people do not accept the strategy, it is then not implemented. Through this, it is concluded that the Court has treated the announcement simply as an offer. In Dyestuffs, undertakings were used to announce price increases long before their implementation. Advocate General Myras stated that these actions were based on the price leader decisions in creating a period of reflection. Conducts are not unilateral as prices change based on their produces. If the prices announced are not accepted, they are then re-visited by the producers. The Commission in Wood pulp argued that the producers had offered enough time for the competitors to announce their prices. There was also no time to retract the offer in a case where the competitors would not accept it.

Inference of Acceptance from Conduct

In the case where an offer is made whether parol, written or conduct the terms of the offers should be indicated. The OFT Collusive Tender showed this clearly through the submission of bids in response to an invitation. Those who submitted bids accepted this offer. A question on whether or not the conduct is preferable is usually considered. In this case, however, the figures submitted showed that they were only responses to the offers made.

In Bayer, the Commission considered the offers made on the supplied goods as goods subjected to exportation prohibition rules. According to Bayer, the continued involvement of the suppliers implied that they had accepted the terms of the conduct. Accepting an offer by suppliers can also be deduced from the continued relationship of the parties. Unlike in the case of the Commission, there were no offers that were put in place for the parties to accept.

Adherence to the Agreement

In the case of the Article 101 TFEU, whether or not parties adhere to an agreement is considered to be irrelevant. This is also in line with the acceptance of written evidence. The existence of an agreement is therefore based on the existence of a written piece of evidence or parole. In the case of Bayer, it was not possible to conclude that the offer was accepted from the conduct presented by the wholesalers.

Obtaining Evidence of Agreement

Based on the agreement made, the need to obtain evidence still stands. Some parties were required to admit the existence of an agreement and its terms in cases where the Commissioner was required to certify the concepts of Article 81 EC. The need for this source was removed after the replacement of the Regulation 17/62 with Regulation 1/2003. It was, however, doubtful whether the information obtained through these notifications and practices had any consequences.

The Commission can gather information as this is within its power. Article 18 of Regulation 1/2003 gives the Commission the power to demand information for assessment in any undertakings. Article 20-22 contained in the Regulation 1/2003 promotes the investigation of obtaining information in relation to the guidelines offered in Article 18. Limitations are however placed on what can be reviewed through this rule. This continues to be a challenge especially in offers that are meant to be kept secret.

Investigative powers that are used in locating existing evidence and the components of the agreement are promoted through a power of exploiting nervousness among the ranks in an effort of obtaining evidence. Leniency aids in the investigation and accumulation of evidence. Obtaining information relies on the speed through which information is obtained. A huge fine and a prison sentence are usually the punishment in the case information, or the cartel is found. Article 83 (1) (a) EC promotes the function of the Council in ensuring that compliance is upheld and that the prohibitions are laid down. The Commission has the power to impose fines based on Article 15 and 16 which are also confirmed in Article 23 and 24 of Regulation 1/2003. A fine of up to 10% can be imposed based on the undertakings. The Commission, however, grants immunity from fines, to the first undertaking which provides evidence that shows the proof of infringement without the need for more investigation. This approach has been successful as most of the Commission cases are currently based on leniency obtained evidence.

EU Antitrust Law versus the US Sherman Antitrust Act

There is an inherent belief that the concept of concerted practice in the European Union Law was mirrored from the United States Sherman Antitrust Act. This view is premised on the fact that before Article 101 and 102 of the TFUE was enacted, none of the EU Member States had domestic laws that contained the concept of concerted practices. Nonetheless, there are some differences and similarities between Article 101 and Section 1 of the US Sherman Antitrust Act. Before delving deep into the salient features of these two antitrust laws, it would be necessary to point out that the former statutory provision is anchored on civil violations whereas the latter focuses on criminal antitrust violations.

The Sherman Act in part states that “every contract, combination in the form of a trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.” While this provision might be construed as prohibiting any contractual relations that contain restrictions, the courts in the US have departed from the literal rule in interpreting the provision. The court in the case of State Oil v Khan and subsequently in the case of Texaco Inc. v Dagher have applied the mischief rule in interpreting the provision to mean that the drafters had intended only to prohibit unreasonable restraints. The legal regime in the US has put in place a rule of reason test in a bid to ascertain whether or not a contractual restriction is reasonable. In applying this test, the courts consider some of the salient features of the business as well as the restraint’s history. As highlighted in the case of Leegin v PSKS Inc., the rule of reason test enabled the court to distinguish restraints that lead to competition for the benefit of the customer from restrictions that are anticompetitive and prejudice the customers.

Paragraph three of Article 101 TFUE has some exemptions to the restrictive agreements that were earlier outlined in paragraph one of the same Article. According to Faull and Nikpay (2007), even though an agreement may prima facie seem anti-competitive, there is a likelihood that it can be exempted as long as it exhaustively satisfies the conditions provided for in paragraph three of Article 101.The manner in which Article 101 was framed enables the CJEU (ex ECJ) to evaluate the economic gains that restrictive agreements bring and weighing them against their ramifications.

Differences in Application of TFUE vis a vis US Sherman Act

It should be noted that the application of Article 101 TFEU is usually done through a two-tier system. The first phase involves analysing a given agreement in relation to paragraph one of Article 101 TFUE in order to determine if it restricts competition. If the evaluation proves that it does not, the application will be concluded at this phase. However, if it is determined that it limits competition, paragraph three of Article 101 TFUE comes into play in order to assess the gains that are evident from the agreement. In as much as there is a similar evaluation under the US Sherman Act, the Act does not have the exemptions that are contained in Art. 101 (3).

Furthermore Article 101 (3) TFUE contains very elaborate requirements that need to be adhered to before the courts can consider an exemption. It should also be proved that the agreement in question ”improves distribution or production or promotes technical or economic progress while allowing consumers a fair share of the resulting benefit.” On the other hand, the rule of reason in the Sherman Act an agreement containing restrictions can be exempted from the applicability of section 1 as long as its procompetitive effects surpass its anticompetitive ones.This sharply contrasts the provisions outlined in Article 101(3).

The US Antitrust legislation provides a clear distinction between restrictions that are per se illegal from the ones that need to apply the rule of reason evaluation. When looking at the occurrence of the conduct, it is usually evident that certain forms of agreements that are considered to curtail competition unreasonably. On the flip side Article 101 does not embody the per se rules. For example, Article 101 (3) exempts some hard-core restrictions such as market sharing, quantity fixing and pricing as long as the requirements are met.

Monopolization

Monopolization is an offence under the US antitrust law. It usually encompasses predatory pricing, product tying, refusing to provide essential facilities, price discrimination and exclusive dealing. Monopolization is also contained in the EU Competition law and though framed as the abuse of a dominant position (Article 102 TFUE). Unlike the Art. 102 TFUE, the Sherman Act also proscribes any attempts or conspiracy to monopolise.

However, both the EU and US antitrust legislation provide that in as much as an undertaking might have some monopoly power, they need to either abuse it or acquired or maintained it by some unlawful exclusionary conduct before they can be considered liable. The mere fact that a particular behaviour gives a party some competitive advantage does not warrant any sanctions to be levied upon a defendant. In the case of Eastman Kodak Co. v Image Technical Services Inc. the Supreme Court held that non-standard contracts that restrict competition can be exempted under the antitrust legislation as long as it is corroborated by a ”valid business reason“ unless the claimant can adduce evidence alleging that it was possible for the defendant to acquire the same gains by employing a less restrictive approach. More recently in the EU, the CJEU reversed the General Court’s decision that had imposed a EUR 1.06 billion fine on Intel Corporation. Intel had been found guilty of abusing its dominant position as a result of the naked restrictions and the exclusivity of rebates. The CJEU in its rationale elaborated interpreted Article 102 TFUE and stated that the provision was not intended to prevent an undertaking from becoming a dominant position in a market and also that not all restrictions are detrimental to competition.

Conclusion

Concerted practices and conventional contracts are two closely related terminologies that are for in Article 101 TFEU (ex Article 81 EC). Owing to the fact that concerted practice contains various features of a valid contract, it can be very difficult to distinguish it from a legally enforceable contract. Nonetheless, as highlighted in the above text, it is possible to distinguish the two concepts after a careful evaluation. While relying on the rationale of the court in case 48/69, it is evident that for one to know whether a particular transaction is indeed a concerted practice, it is necessary to evaluate the behaviour of the parties. This evaluation will enable someone to determine the common intention of the parties during their transaction. If the common intention was to create legal obligations then it would be obvious that the transaction was a contract but in case the intention was not to have any legally binding relations, then the transaction would be construed as a concerted practice. Furthermore it was noted that in as much as Article 101 (3) might embody some of the elements of the doctrine of the rule of reason, most of the EU case laws seem to contradict this perception.

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