Article 108 tfeu published on 26 jan 2018 by edward elgar publishing. Competition policy articles 101 to 109 of the treaty on the functioning of the european union tfeu contain rules on competition in the internal market, prohibiting anticompetitive agreements between undertakings. The debates to which it has given rise in less than six months suggest that the controversy about the legal treatment of exclusive dealing and rebates under article 102 tfeu is still very much alive. It follows that any individual can claim compensation for the harm suffered where there is a causal relationship between the harm and an agreement or practice prohibited under article 101. The conventional view also takes the position that article 1062 tfeu can be invoked by the member states and undertakings. In contrast, article 101 has in many respects undergone a change to allow for economical. Not all measures constituting state aid are prohibited.
The application of article 102 tfeu by the european commission and the european courts romano subiotto qc, and david r. Arguably, the ongoing controversies around the scope of article. In conclusion, article 1061 applied in combination with article 102 tfeu is ready to report for duty and is at least as strong as ever. Council has, pursuant to article 109, determined may be exempted from the procedure. However, the use the commission will do of it is a mystery as, in recent times, the commission has shown reluctance to rely on said provisions. In june 2014, the general court of the eu delivered its judgment in intel. In contrast, the application of article 1073 tfeu seems to be more focused on derogations associated with investment aid and excludes the continuous aid required to allow an undertaking in receipt of state aid to continue to function i. Articles 101 to 109 tfeu and protocol no 27 on the internal market and competition, which make clear that a system of fair competition forms an integral part of the internal market, as set out in article 33 teu. For instance, they have continued to apply the margin squeeze theory to cases where inputs controlled by dominant firms are essential for downstream competition or must. Glossarytreaty on the functioning of the european union tfeurelated contentone of the two main treaties that form the basis of eu law. Introduction at the end of 2012, there were a total of 30 active article 102 tfeu dossiers. Article 102 tfeu has been the target of vast criticism the recent years. The merger regulation council regulation ec no 92004 and its. Legislation treaty provisions on state aid european commission.
Formerly known as the ec treaty, the treaty of rome or the treaty establishing the european community. The common organisation of the markets in agricultural. European commission, dg competition, private enforcement unit 8 indirect purchasers objective to ensure compensation for all categories of victims courage 2001, manfredi 2006. In this context, the right articulation between eu funds rules and state aid rules is important to guarantee the best possible impact of the mff and to avoid unnecessary complexities. He makes the point that article 1062 tfeu should not be turned into a general clause in eu law because. Article 1062 tfeu is traditionally seen as a derogation to the treaty provisions and has an awkward role. Chapter 12 article 109 tfeu determination of regulations regarding the application of arts 107 and 108 chapter regulation ec no 12003 on the implementation of the rules on competition chapter 14 regulation ec no 92004 on the control of concentrations between undertakings. The european law blog aims to highlight, and comment on, current developments in eu case law and legislation. The rules regarding state aid in articles 107 109 tfeu are rules which aim to keep public authorities from overusing powers in fields which shall be open to competition. It prohibits restrictive agreements between independent market operators acting either at the same level of the economy horizontal agreements, often as actual or potential competitors, or at different levels vertical agreements, mostly as producer and distributor. Exploring the outer limits of article 114 tfeu towards a.
As already mentioned above the state aid law framework is formed at the level of primary law by article 107 to. Regulation ec no 12003 on the implementation of the rules on competition chapter 14. Damages actions for breach of articles 101 and 102 tfeu. Article 109 ex article 89 tec the council, on a proposal from the commission and after consulting the european parliament, may make any appropriate regulations for the application of articles 107 and 108 and may in particular determine the conditions in which article 1083 shall apply and the categories of aid exempted from this procedure.
The law and economics of article 102 tfeu is a comprehensive, integrated treatment of the legal and economic principles that underpin the application of article 102 tfeu to the behaviour of dominant firms. On 1 december the treaty of lisbon entered into force. It concerns hard core restrictions of competition like cartels as much as efficiency enhancing agreements. Comments on the draft commission notice on the notion of. In its notice on the application of the article 81 3 ec 2004, now article 101 3 tfeu, the commission includes the statement that. Treaty on the functioning of the european union tfeu. Agreements that restrict competition by object under. Member states shall avoid excessive government deficits. Introduction it is difficult to draw the line between lawful and unlawful practices implemented by dominant firms. The commission shall monitor the development of the budgetary situation and of the stock of government debt in the member states with a view to identifying gross errors. Consolidated version of the treaty on the functioning of the. That is because contrary to the possibility for member states to argue an exception to a traderestrictive national tax article 110 tfeu, previously article 90 ec, per the ecjs caselaw vinal v orbat, case 4680, was the pivotal kickoff case, there is no room for manoeuvre. Core provisions of the treaty on the functioning of the european union tfeu, formerly called treaty establishing the european community ec article 107 of the tfeu.
Consolidated version of the treaty on the functioning of. Article 109 tfeu published on 28 nov 2014 by edward elgar publishing. Legislative competence in the field of state aid legislation art. A significant risk for businesses fines intel, 1,060,000,000 remediesstructural and behavioral damages courage and crehan c45399. Notification under article 1072b tfeu description of. Legislation treaty provisions on state aid full texts of the treaties. Nevertheless, recent developments in eu case law may cast doubt on this assumption. During the period covered, the european commission and courts have followed their traditional approach in the application of article 102 tfeu abuse of dominant position. Save as otherwise provided in the treaties, any aid granted by a member state or through state resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between member states, be incompatible with the internal market. This is especially important for situations in which a project is funded both by eu funds managed. Legal opinion concerning the competences of the european union. He argues that article 1062 tfeu can only be invoked by undertakings.
Article 107 of the tfeu article 108 of the tfeu article 109 of the tfeu. Article 102 tfeu, aimed at serving the ordoliberal agenda. Particular restrictions that fall within the impugned category are therefore automatically seen as having the object of restricting competition under article 1011 tfeu. This chapter raises the question of the purpose of article 106 tfeu ex article 86 ec. Article 102 of the treaty on the functioning of the. Article 10711 of the treaty on the functioning of the european union the tfeu. Rather, according to article 108 tfeu, all new state aid measures according to the five criteria set out in article 107 tfeu have to be notified to the european commission. Description of the exceptional occurrence and the official reaction of your authorities. However, the cjeu has been reluctant to provide with deeper insight on the conditions that needs to me met and where the. The rules regarding state aid in articles 107109 tfeu are rules which aim.
Article 101 tfeu is one of the three pillars of eu competition law. Chapter 12 article 109 tfeu determination of regulations regarding the application of arts 107 and 108 you do not have access to this content chapter regulation ec no 12003 on the implementation of the rules on competition. Iv, issue 8 november 2016 6949 enjoyed by the consumer. Article 14 ex article 16 tec without prejudice to article 4 of the treaty on european union or to articles 93, 106 and 107 of this treaty, and given the place occupied by services of general economic interest in the shared values of the union as well as their role in promoting social and territorial cohesion, the union and the. Traditional concerns of monopoly behaviour, such as predatory pricing, refusals to deal, excessive pricing, tying and bundling, discount. Without prejudice to article 4 of the treaty on european union or to articles 93, 106 and 107 of this treaty, and given the place occupied by services of general economic interest in the shared values of the union as well as their role in promoting social and territorial cohesion, the union and the member states, each within their respective. For the purposes set out in article 3 of the treaty on european union, the activities of the member states and the union shall include, as provided in the treaties, the adoption of an economic policy which is based on the close coordination of member states economic policies, on the internal market and on the definition of common objectives, and conducted. Its core role is the regulation of monopolies, which restrict competition in private industry and produce worse outcomes for consumers and society. The commission may adopt regulations relating to the categories of state aid that the council has, pursuant to article 109, determined may be exempted from the procedure provided for by paragraph 3 of this article. Article 101 tfeu is one of the most prominent treaty provisions on competition. Article 102 of the treaty on the functioning of the european union formerly article 82 of the treaty establishing the european community is aimed at preventing undertakings who hold a dominant position in a market from abusing that position. Businesses with a dominant market position must not abuse their position in a way which adversely affects trade between member states. As from 1 december 2009, the lisbon treaty significantly revised and renamed the treaty on the functioning of the european union.