This article is part of a Chronicle. See more from this Chronicle
Valentine Korah, Apr 06, 2007
Article 81 forbids as incompatible with the common market collusion that may affect trade between member states and has the object or effect of restricting competition. Such agreements are automatically void, but may be exempted under Article 81(3). Article 82 forbids, also as incompatible with the common market, the abuse of a dominant position.
The first decisions of the European Commission on competition were adopted in 1964. The six member states were all in Continental Europe where legislation was considered the proper method of changing the law and lawyers were expected to follow its letter. Judges were not expected to mention policy. Articles 81 and 82 were applied formalistically by young officials in the Commission, few of whom had had any experience of practice, or invested in anything more important than a house in Tevuren. Many tended to consider that an agreement would be less anti-competitive if limitations on conduct were removed.
The Court of Justice of the European Communities (ECJ) clearly stated in Soci La Technique Minière v Maschinenbau Ulm GmbH that “the competition in question must be understood within the actual context in which it would occur in the absence of the agreement in dispute:” the counterfactual was “in the absence of the agreement.” This statement, however, was ignored after the judgment of the ECJ three weeks later in Etablissements Const…