April 25, 2020
The ‘article 101 TFEU’ talks of the trade agreements in countries and associations. This is under one of the areas in the European Union law called European Union competition law. In the United States, it goes by the name of antitrust, and in the serves a large purpose in the European union of completing the internal market. It regulates many things including the free flow of people and goods, and services in a borderless continent on account of the free trade. It has four areas of concern that include mergers, cartels, monopolies, as well as the state aid. All of this to maintain that there are no abuses by the proponents of these agreements.
Article 101 and 102 take on infringement
When referring to the agreement made by KS and the two countries, it would seem that the article has been infringed. According to the article, all undertakings that would be prohibited with compatibility in the internal market have some elements in the agreement. The agreement proposes to affect trade by restricting or preventing trade within the internal market (Bassan, 2011). The Article 102 TFEU is an odd document indeed it does offer administrative authority in that it limits the enforcement action only on a voluntary basis.
It is even more to see it taking steps to clarify the substantive scope of the legal provisions. The concept of abuse is under the control of some principles. The reading of these abuses would suggest that they are only concerned with exploitative abuses. The result of trying to make the agreements by KS or GR would that their arrangements would immediately cease to exist under the EU regulations. Thus, article (101)1 states that any agreements termed as pursuant or prohibited to the article will immediately be void. This would attempt to terminate the transaction at the basic level.
At that point, this would not be overly harsh on the parties involved because it does not mention any compensatory payment or fines to be issued. The article in this sense is quite lenient on the parties caught in these situations. The article 102 does not clearly state the consequences of running foul of the first article. The article nevertheless mentions that there may be exemptions to the regulation in certain situations. These are such that if the agreement or category of the agreements between the undertakings or a decision or category of decisions does not impose on the undertakings concerned restriction. It should also not afford the possibility of eradicating competition in respect to a significant part of products in question.
Relief from article 103
The article 103 provides some kind of relief in that it clarifies the first two; article 101 and 102. They are both incomplete in some areas. The article provides for the issuing of fines and periodic penalty payments to ensure compliance with the first two regulations (Grahn, 2008). This will state the consequences quit clearly for organizations and countries infringing on the principles. The article 101(1) seems to be advocating free competition in the purest form without infringement of any party’s rights.
There are many paths that the commission may take when investigating an infringement of the articles 101 and 102. These are that it may make the agreement or arrangement null as mentioned before. It may also act on self initiative if the situation dictates to order for interim measures. The commission may also impose fines on the infringers of the regulation to go to a sum, not above 1 percent of the total turnover made by the agreement. It may also impose some period penalty payments for the infringement on account of the situation. This may go to sums not exceeding 5 percent of the daily turnover of the agreement on a daily basis.
As stated earlier, the article 102 TFEU is a bit ambiguous when trying to fully define the parameters of abuse of the regulations stated in article 101 (Art and Colomo, 2011). It tries to distinguish between pro competitive, and noncompetitive conduct. This is a task, which many institutions, commissions, and professionals have been trying to do ever since the first days of antitrust in the United States. There is the distinguishing of whether the definition of abusive conduct would fall under that of the law.
There are ways that the article 101 could be avoided through exemptions. This could be that an agreement contributes to the promotion of technical or economic progress. It boosts significant production improvement and distribution of goods and services. On the other hand, it also goes if the agreement technical and economic progress which entails cost efficiency, qualitative and dynamic efficiency, economies of scale and scopes, as well as synergies, (Bassan, 2011).. This would be done while allowing customers to have their fair share of the resulting benefit in any case. At the same time, it should not impose on the undertakings of the prohibitions that are not indispensable to the attainment of the objectives.
If this is so then the courts, would take jurisdiction. On the other hand, if it fell under the area of policy then the commission would enjoy sole discretion over the case. The role of the article also goes to describe how the EU courts have a part to play in the regulations in liaison with the commission. This goes to describe the notion of abuse according to the article.
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