The European Commission uses the term “antitrust” to characterize the areas of competition law which are distinct from merger control and state aid (compare the American name “antitrust law” as a synonym for competition law). The Commission may also impose fines on undertakings that violate EC antitrust rules. Since 1 May 2004, all national competition authorities are also empowered to apply fully the provisions of the EC Treaty in order to ensure that competition is not distorted or restricted.
National courts may also apply these prohibitions so as to protect the individual rights conferred to citizens by the EC Treaty. The main competition rules are contained in Articles 81 – 86 of the EC Treaty (the numbering has now changed after ratification of the Lisbon Treaty - Articles 101 ff of the Treaty on the Fuctioning of the European Union - TFEU). A general power to control mergers is not expressly contained, but merger control rules are provided by Regulation 139/2004 (see Chapter Merger Control). Sources of European antitrust law are also several as well as the Commission’s regulatory ducuments (such as notices and guidelines). The basic provisions are Articles 101 and 102 TFEU (formerly Art 85 and 86, then 81 and 82 of the EC Treaty):
Article 101
1. The following shall be prohibited as incompatible with the common market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market, and in particular those which:
(a) directly or indirectly fix purchase or selling prices or any other trading conditions;
(b) limit or control production, markets, technical development, or investment;
(c) share markets or sources of supply;
(d) apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;
(e) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.
2. Any agreements or decisions prohibited pursuant to this article shall be automatically void.
3. The provisions of paragraph 1 may, however, be declared inapplicable in the case of:
- any agreement or category of agreements between undertakings,
- any decision or category of decisions by associations of undertakings,
- any concerted practice or category of concerted practices,
which contributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, and which does not:
(a) impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives;
Article 102