Due to Regulation No 1/2003, Article 101 (3) TFEU is now immediately applicable. Companies are now required to do a self-assessment of whether an agreement, that restricts competition, fulfil the qualifications of an exemption.


Moreover, this assessment is also required if an allegation of infringing the cartel prohibition arises.


For simplification the European Commission has released guidelines. These guidelines enable the interpretation of Article 101 (3) TFEU under consideration of the European School of Thought.


The structure of 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 be restrictive of competition. The second step focuses on the determination of the pro-competitive benefits produced by that agreement in order to assess 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 of the European Commission on Article 101 (3) TFEU explain the conditions for exemption in detail and, therefore, set a framework. The designated standards in the guidelines - in accordance with the jurisdiction - must be applied. As a result, an automated application is excluded and each case must be considered separately with regard to the specific facts.


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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