Agreement Per Se

A contract, combination, or conspiracy that unduly restricts trade and does not fall into the per-se category has generally been analyzed according to what is known as the test of reason. This test focuses on competition within a well-defined relevant agreement. It requires an in-depth analysis of (i) the definition of the relevant product market and space, (ii) the market power of the defendant(s) on the relevant market, (iii) and the existence of anti-competitive effects. The court will then place the burden on the defendant(s) in order to demonstrate an objectively pro-competitive justification. The associated types of horizontal agreements are often considered anti-competitive21: horizontal agreements are agreements/arrangements between at least two projects/undertakings that are at a similar level of the production chain and in a similar market16. The best illustration of this type of agreement is within two suppliers that market similar items in similar markets, and the two items must replace each other. Being in a similar phase of the production chain concludes that the parties to the agreement are both (all) producers, retailers or wholesalers. Under Article 3(3), the agreements accompanying it are considered anti-competitive if: it is nevertheless necessary for the ECJ to interpret the prohibition of agreements under Article 101 `which. prevention of competition. As already mentioned, the ECJ has the power to establish general principles of law in response to a referral from a Member State.

The Court often draws on its previous experience in object-specific infringement cases in order to maintain its consistency in its interpretation of this vague aspect of Art. 101, including an often recurrent quotation from the beef industry`s decision that `certain forms of cartel between undertakings may be regarded by their nature as prejudicial to the proper functioning of normal competition`. [10] However, in T-Mobile, General Counsel Kokott went beyond this often recurring theme and effectively used the term “prohibition per se”, partially justifying the standard by setting the benefits of legal certainty for business and the preservation of enforcement and justice resources. [11] Admittedly, even in the absence of Kokott`s recognition of a rule per se, the unilateral exchange of information to T-Mobile could have been considered an anti-competitive objective under the Beef Industry standard. The ECJ`s investigation into the actual effects of such an agreement would nevertheless end in the same way as that of an analysis by the Supreme Court itself, but the use of the term “per se” in an EU competition decision is a significant development. . . .