Due to EU Regulation 1/2003, Article 101(3) TFEU (Treaty on the Functioning of the European Union) is now immediately applicable. Companies are required to do a self-assessment of whether an agreement, that restricts competition, fulfils the conditions of an exemption.


This assessment is also required if an allegation of an infringement of the cartel prohibition is made.


To help businesses with their assessment, the European Commission has released Guidelines. These guidelines clarify the interpretation of Article 101(3) TFEU under consideration of the European School of Thought.


The structure of the economic assessment consists of two parts:


  • The first step is to assess whether an agreement has an anti-competitive object or actual (or potential) anti-competitive effects.
  • The second step only becomes relevant when an agreement is found to restrict competition. The second step focuses on the determination of the pro-competitive benefits produced by that agreement in order to determine whether these pro-competitive effects outweigh any anti-competitive effects. This form of weighing up the pro-competitive and anti-competitive effects only occurs in the course of an exemption.


The Guidelines explain the conditions for an exemption in detail and set a framework. The designated standards in the Guidelines must be applied. EE&MC has the experience and tools to apply this framework.


To learn more about the exemption under Article 101(3) TFEU, click here.


Guideline on the applicability of Article 101 TFEU
Guidelines of the European Commission on Article 101 (3) TFEU
Guidelines of the European Commission on horizontal agreements
Guidelines of the European Commission on vertical agreements
Announcement of the European Commission on the definition of the relevant market
EE&MC on Article 101 (3) TFEU

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