COMPETITION • EUROPEAN LAW • RESTRICTIVE AGREEMENTS
The European competition authorities have been quick to support the exclusion of the internal behavior of a corporate group from the scope of Article 101 TFEU: an agreement or concerted practice is not possible between undertakings when those companies have a relationship of economic dependence. An agreement does not fall within the scope of Article 101(1) TFEU if it is concluded within a group of companies, between a parent company and its wholly owned subsidiaries. However, the fact that the parent company has the power of control over the subsidiary is not sufficient to constitute a situation of dependence in order to remove the intra-group agreement from the scope of Article 101 TFEU. The parent company must have actually exercised its power. According to the Court of Justice, the absence of autonomy of the subsidiaries must be assessed with regard to their ability to “[determine] their course of action in the market”. The restrictive effect on third parties is only unimportant “in such conditions”, i.e. where there is a 100% effective control by the parent. In the absence of the exercise of total control, the benefit of immunity could be excluded where the agreement between the parent company and its subsidiary has the object or effect of causing a “non-indispensable” restriction of competition with regard to third parties.
