COMPETITION • EUROPEAN LAW • RESTRICTIVE AGREEMENTS

The fact that a decision – a unilateral act – comes from an “association of undertakings”, i.e. a grouping of independent economic entities is enough for collusion to be inferred. The legal form of the association is irrelevant in that respect. An association of undertakings does not have to have a lucrative purpose or be endowed with legal personality. Thus, where a professional organization draws up rules of professional conduct for its members, it acts as an association of undertakings within the meaning of Article 101(1) TFEU. It is also unnecessary for the association of undertakings to have its own commercial activity: it is enough that the restrictive effects are likely to result from the activity of its members.

The supervisory authorities differentiate between bylaws- which characterize agreements between undertakings, and internal regulations and binding measures – which constitute decisions by an association of undertakings. Circulars and recommendations distributed by associations of undertakings are decisions within the meaning of Article 101 TFEU, where they are in line with the bylaws that have been brought to the notice of the members of the association, and accepted and applied by them.

An undertaking which joins an association of undertakings accepts its rules and decisions. Subject to the general rules, it is considered as a participant in an agreement. Thus, in order to exclude its participation in the agreement, it will not be sufficient to establish its absence at meetings. It must also prove that it has taken positive acts of dissent.