Ficha de revisão: EU Competition Law Fundamentals

📋 Course Outline

1. Foundations and historical schools of EU competition law
2. EU competition law objectives and legal basis
3. Recent developments and challenges in EU competition law enforcement
4. Sources and institutional framework of EU competition law
5. Anti-competitive agreements and cartel enforcement examples
6. Abuse of dominant position and landmark cases
7. Control of concentrations and merger regulation enforcement
8. Market power assessment and relevant market definition in EU competition law

📖 1. Foundations and historical schools of EU competition law

🔑 Key Concepts & Definitions

• Harvard School : Structure – Conduct- Performance paradigm.
• Chicago School : Interventions should be limited to practices not leading to efficient outcomes in the market.
• Ordoliberalism (Freiburg School) : A school of thought influencing EU competition law that views competitive markets as systems characterized by economic freedom and legally protected individual rights.

📝 Essential Points

• Competition law originated in the United States with the 1890 Sherman Act, initially aimed at addressing concerns about large trusts and protecting smaller businesses.
• The Chicago School advocates limiting competition law interventions to practices that prevent efficient market outcomes, prioritizing economic efficiency.
• EU competition law is influenced by Ordoliberalism, which views competition as a system characterized by economic freedom and legally protected individual rights.
• According to this school of thought, competitive markets are characterised by economic freedom and legally protected individual rights.
• Antitrust law should focus on the structure of the market rather than on protecting competitors.

💡 Key Takeaway

Understanding the foundational economic theories and schools of thought is essential to grasp the philosophical underpinnings and evolution of EU competition law.

📖 2. EU competition law objectives and legal basis

🔑 Key Concepts & Definitions

• Consumer welfare : An economic efficiency goal in EU competition law that includes low prices, quality, choice, output, and innovation, distinct from consumer protection law.
• Effective competition : The degree of competition necessary to ensure the attainment of the objectives of the Treaty, considering various parameters beyond price competition.
• Single market : An internal market system in the EU aimed at dismantling internal trade barriers and preventing agreements that isolate domestic markets.
• Competition rules : Rules established by the EU under exclusive competence to protect competition in the internal market from artificial restraints by market operators.
• Internal Market and Competition : 20-21 […] it must be observed at the outset that Article 3(3) TEU states that the European Union is to establish an internal market, which, in accordance with Protocol No 27 on the internal market and competition, annexed to the Treaty of Lisbon (OJ 2010 C 83, p.

📝 Essential Points

• Article 3(1)(b) TEU grants the EU exclusive competence to establish competition rules necessary for the internal market.
• EU competition law aims to protect effective competition, which is necessary to attain Treaty objectives, considering various parameters.
• The single market objective involves dismantling internal trade barriers and preventing market-isolating agreements.
• Consumer welfare in the EU includes quality, choice, output, and innovation, not just low prices.
• Fairness aims at ensuring a fair deal for consumers and competitors, focusing on defending competition, not competitors.
• Protocol 27 on the Internal Market and Competition “Considering that the internal market as set out in Article 3 of the Treaty on European Union includes a system ensuring that competition is not distorted […]” Article 3 TEU The Union “shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of environment […]” Article 120 TFEU “Member States shall conduct their economic policies with a view to contributing to the achievement of the objectives of the Union, as defined in Article 3 of the Treaty on European Union […] The Member States and the Union shall act in accordance with the principle of an open market economy with free competition”.
• 109 Article 3(1)(b) TFEU “The Union shall have exclusive competence in the following areas: […] (b) the establishing of the competition rules necessary for the functioning of the internal market” According to article 3(1)(b) the EU has exclusive competence on EU competition law.

💡 Key Takeaway

EU competition law, grounded in Treaty provisions, seeks to balance market integration, consumer welfare, and fairness to sustain a competitive internal market.

📖 3. Recent developments and challenges in EU competition law enforcement

🔑 Key Concepts & Definitions

• Green Deal : An EU initiative that has influenced competition law by shaping the competitive process, including sustainability agreements under the Horizontal Guidelines.
• Damages Directive : Directive 2014/104/EU promoting rising private enforcement of competition law to complement public enforcement.

📝 Essential Points

• The Digital Markets Act (2022) targets powerful enterprises in digital markets to address new competition challenges.
• Regulation 1/2003 introduced decentralised enforcement known as 'modernisation', enhancing cooperation between the Commission and national authorities.
• Horizontal Guidelines - sustainability agreements  Covid-19: eg.

💡 Key Takeaway

EU competition law enforcement continuously adapts to emerging economic, technological, and societal challenges through legislative and policy innovations.

📖 4. Sources and institutional framework of EU competition law

🔑 Key Concepts & Definitions

• The Commission : The EU institution responsible for developing competition law proposals, adopting implementing regulations, investigating suspected infringements, and deciding on remedial actions.
• National Competition Authorities : Authorities within Member States empowered to apply and enforce EU competition law at the national level.

📝 Essential Points

• Primary sources of EU competition law include Articles 101-109 TFEU, with Articles 101 and 102 directly applicable to undertakings.
• Regulation 1/2003 modernised enforcement by decentralising powers to national competition authorities and establishing cooperation mechanisms.
• DG COMP leads the Commission's competition policy, with regulatory, investigative, and supervisory powers.
• The European Competition Network (ECN) organises cooperation between the Commission and national competition authorities.
• The Court of Justice of the European Union interprets competition law through preliminary rulings and direct actions, ensuring uniform application across Member States.

💡 Key Takeaway

The EU competition law framework is supported by a complex legal and institutional architecture ensuring effective enforcement and judicial oversight.

📖 5. Anti-competitive agreements and cartel enforcement examples

🔑 Key Concepts & Definitions

• Between firms : Involves agreements or conduct between multiple undertakings, either at the same level or at different levels of the supply chain.
• Delivery Hero : Glovo cartel (2025) The Commission fined a total of €329 million for participating in a cartel facilitated through Delivery Hero’s minority shareholding in rival Glovo.

📝 Essential Points

• Article 101 TFEU prohibits agreements that fix prices, share markets, or restrict competition, with horizontal agreements occurring between competitors and vertical agreements along the supply chain.
• The Trucks cartel (2016) involved five manufacturers fined €2.93 billion for price-fixing and coordinating the timing and cost of introducing new emission technologies.
• The Delivery Hero and Glovo cartel (2025) involved no-poach clauses, exchange of sensitive information, and allocation of geographic markets for online food delivery, resulting in €329 million fines.

💡 Key Takeaway

Anti-competitive agreements, especially cartels, are rigorously targeted by EU competition law to preserve market integrity and consumer interests.

📖 6. Abuse of dominant position and landmark cases

🔑 Key Concepts & Definitions

• Tying and bundling : Practices that condition the sale of one product on the purchase of another, potentially foreclosing competition.
• Refusal to supply : A practice where a dominant firm fails to provide information or access necessary for competitors to operate, thereby abusing its position.
• Dominant position : A market status where a firm holds significant power enabling it to behave independently of competitors and customers.
• Media Player : Microsoft operating system foreclosing competition of third party media players.

📝 Essential Points

• Article 102 TFEU prohibits abuse of a dominant position, including practices like excessive pricing and predatory pricing.
• Tying and bundling involve conditioning the sale of one product on the purchase of another, potentially foreclosing competition.
• The Microsoft Media Player case (2004) fined Microsoft for refusal to supply interoperability information and tying Windows Media Player with its OS.
• The Apple Music case (2024) fined Apple €1.8 billion for anti-steering provisions restricting app developers from informing users about cheaper alternatives.
• (AT.37792 Microsoft Media Player, Case T-201/04)
• Apple Music (2024) The Commission fined Apple over €1.8 billion for abusing its dominant position on the market for the distribution of music streaming apps to iPhone and iPad users (‘iOS users') through its App Store.
• In particular, the Commission found that Apple applied restrictions on app developers preventing them from informing iOS users about alternative and cheaper music subscription services available outside of the app (‘anti-steering provisions’).

💡 Key Takeaway

Abuse of dominance enforcement addresses conduct that distorts competition, with landmark cases illustrating the application of Article 102 TFEU.

📖 7. Control of concentrations and merger regulation enforcement

🔑 Key Concepts & Definitions

📝 Essential Points

• The EU Merger Regulation governs mergers, acquisitions, and joint ventures with an EU dimension to prevent significant impediments to effective competition.
• Phase II investigations are in-depth reviews conducted when initial assessments raise serious competition concerns.
• Remedies such as divestitures or behavioral commitments can be imposed to address competition issues in merger approvals.
• The Lufthansa/ITA Airways merger (2024) was conditionally approved with remedies addressing dominance and competition concerns on short-haul routes.
• The deal was granted conditional approval subject to a number of remedies including slot divestitures and competition facilitation on short-haul routes.
• The deal raised concerns about reduced competition in short-haul routes and stronger dominance at certain airports, among others.

💡 Key Takeaway

Merger control ensures that market concentrations do not harm competition, using thorough investigations and tailored remedies.

📖 8. Market power assessment and relevant market definition in EU competition law

🔑 Key Concepts & Definitions

• Geographical market : A defined geographic area in which a product is marketed and where the conditions are sufficiently homogeneous to evaluate the economic power of the undertaking concerned.
• Market power : The ability of an undertaking to profitably raise prices over a period of time, including limiting output, suppressing innovation, and reducing variety or quality of goods.

📝 Essential Points

• The relevant market is defined by product and geographic boundaries to identify competitive constraints on undertakings.
• The SSNIP test assesses demand substitutability by evaluating customer switching in response to a hypothetical 5-10% price increase.
• Market power assessment considers actual competitors, potential competitors (barriers to entry), and countervailing buyer power.
• Market definition is essential in applying Articles 101 and 102 TFEU and in merger control to evaluate competition effects.
• ▪ In assessments under Article 102 TFEU, when considering whether an undertaking has a dominant position ▪ Under the EU Merger Regulation, when determining if a merger would significantly impede effective competition MARKET POWER IN THE RELEVANT MARKET  Actual competitors (market share): constraints imposed by existing competitors and their position in the market  Potential competitors (barriers to entry): constraints imposed by the credible threat of entry of future competitors  Countervailing buyer power: constraints imposed by the bargaining strength of the undertaking’s customers Legal instruments and case law  Competition and the EU Treaties, see : o Protocol 27 on the Internal Market and Competition, art.

💡 Key Takeaway

Accurate market definition and power assessment are foundational tools for applying EU competition law to maintain competitive market structures.

📅 Key Dates

Date	Event
1890	Origin of competition law in the US
2010	Introduction of the Damages Directive
2014	Adoption of the Damages Directive
2022	Digital Markets Act enforcement
2003	Modernisation of enforcement with Regulation 1/2003
2024	Fines related to Apple Music case

📊 Synthesis Tables

Comparison of Schools of EU Competition Law

School	Main Focus	Key Principles
Harvard School	Structure-Conduct-Performance paradigm	Market structure influences conduct, which affects performance
Chicago School	Market efficiency	Limit interventions to practices that prevent efficient outcomes
Ordoliberalism	Legal framework for competition	Markets characterized by economic freedom and legal protections

⚠️ Common Pitfalls & Confusions

1. Confusing the objectives of consumer welfare with consumer protection law.
2. Assuming all market power is illegal without considering market context.
3. Misinterpreting the scope of Article 101 and 102 TFEU.
4. Overlooking the importance of market definition in competition analysis.
5. Confusing abuse of dominance with competitive strategies.
6. Ignoring the role of potential competitors in market power assessment.
7. Misunderstanding the legal basis for enforcement actions.

✅ Exam Checklist

1. Understand the historical development of EU competition law.
2. Identify the main objectives and legal basis of EU competition law.
3. Recognize recent developments like the Digital Markets Act.
4. Familiarize with the institutional framework including the Commission and national authorities.
5. Learn about anti-competitive agreements and cartel enforcement examples.
6. Study landmark cases on abuse of dominant position.
7. Understand the control of concentrations and merger regulation.
8. Master the concepts of market power and relevant market definition.
9. Analyze the sources of EU competition law and their application.
10. Differentiate between horizontal and vertical agreements.
11. Examine the role of the European Court of Justice.
12. Apply the SSNIP test in market definition.