COMPETITION • EUROPEAN LAW • FIELD OF APPLICATION
Articles 101 and 102 TFEU apply to practices or behavior which “may affect trade between Member States”. The Guidelines on the effect on trade contained in Articles 101 and 102 of the Treaty (No 2004/C 101/07 of 27 April 2004) set out the principles developed by the Commission and the EU courts on the concept of effect on trade between Member States and provide guidance on its application in the most common cases.
The concept of trade covers all economic activity regardless of its object and methods of carrying out such trade, including establishment. It is not limited to traditional exchanges of goods and services across borders. The term “trade” is a broad concept and covers for instance money transactions or transit services.
Trade between Member States can be affected whether that trade concerns imports or exports. It is enough that goods are commercialized in the internal market as a whole or that they constitute the raw material for goods marketed in the EU.
The concept of “trade between Member States” implies that there must be cross-border economic activity involving at least two Member States. However, it is not essential that the agreement or practice affect trade between two Member States. Firstly, some anticompetitive practices may affect trade between Member States even if they do not relate directly to patterns of trade between Member States, as they hinder the establishment on the national territory of undertakings having their registered office in other Member States. Secondly, where a cartel hinders imports of products from other Member States, the marketing of the products in a single Member State is not sufficient to exclude an effect on trade between Member States.
The concept of “trade” also encompasses cases where the agreements and practices affect the structure of competition on the market: any strategy for the elimination of a competitor, which operates on the EU market, may fall within the scope of the EU competition rules.
At least two conditions must be fulfilled to establish an effect on trade between Member States: a sufficient degree of probability on the basis of a set of objective factors of law or fact; a direct or indirect, actual or potential influence on the pattern of trade between Member States.
The probability of an effect on trade depends on several factors which when taken individually, would not necessarily be decisive. The courts must evaluate whether the condition pertaining to effect is met by taking account of the economic and legal context. There is no requirement that all the clauses of an agreement should affect trade between Member States.
As a condition for the application of EU law, the effect on trade test is usually fulfilled even if, for the time being, no restriction of competition has been established. The authorities must assess the aptitude of an agreement or practice to exert an actual or potential influence on trade between Member States. European law is applicable when the agreement or practice is capable of diverting the flow of trade between Member States from its otherwise likely natural course.
To determine the applicability of EU law, the effect on trade between Member States must be appreciable. In principle, an agreement which does not have any appreciable economic effects also does not affect trade between Member States nor does it infringe competition within the meaning of Article 101(1) TFEU. Traditionally the test of the appreciability of the effect on trade is in respect of the volume of trade concerned, turnover achieved by the products concerned or the market share held by the undertaking. The effect on trade between Member States is all the more appreciable where the agreement is implemented on a market on which trade is still limited.
According to the Guidelines on the effect on trade concept of 27 April 2004, agreements are not capable of appreciably affecting trade between Member States when the following two conditions are both met: the aggregate market share on any relevant market affected by the agreement should not exceed 5% and turnover of the undertakings concerned in the case of horizontal agreements, and of the supplier in case of vertical agreements, should not exceed EUR 40 million.