The interplay between article 101(1) and article 101 (3) TFEU

Abstract

The main function of competition law is that of maximising competition welfare however the main goals of Article 101 TFEU can still be said to be unclear. There arise certain boundaries with regards to Article 101 TFEU both in its application and interpretation. The Commission's application of the competition rules was highly criticized in the past due to the broad interpretation of what restricts or distorts competition. The Commission tried to redress the drawbacks which Article 101 (1) created as it became aware of the difficulties which such broad interpretation was causing. This thesis provides an overview of the early applications of Article 101 where the Commission applied a formalistic interpretation of Article 101 (1). This thesis outlines also the structure of Article 101 and how its parts interact together, especially how Articles 101 (1) and 101 (3) together try to eliminate anti-competitive agreements that affect trade between Member States. This thesis examines also how a revolution took place within, at the time, the EC Competition regime and addresses the Modernisation Regulation from the perspective that this Regulation still keeps Articles 101 (1) and 101 (3) separate and distinct. Articles 101 (1) and 101 (3) TFEU are compared with the US Sherman Act outlining the issue that both try to prevent anti-competitive agreements but that we find no equivalent of Article 101 (3) in US Law. In particular there is a discussion of whether or not there can be said to be a Rule of Reason within the European Union Competition Law. This thesis seeks to evaluate the relationship that exists between these two parts of Article 101 TFEU and provides an overview of how the two Articles are perceived, if either one is restrictive or not. The main contribution of this work is to outline the role of Article 101 (3) in conjunction with Article 101 (1) and ultimately whether there should be a review of Article 101.