EUR-Charts

Suggested solution:

According to the Court’s case law, the exchange of sensitive business information is deemed to constitute a concerted practice within the meaning of Art. 101(1) TFEU, even if it does not lead to adaptations in the companies’ conduct (Case C-49/92 P Commission v Anic Partecipazioni SpA, ECLI:EU:C:1999:356). This is a rebuttable presumption. A concerted practice is prohibited if the other conditions are met, i.e. the conduct may affect trade between the Member States (inter-state element) and that it has as its object or effect the prevention, restriction or distortion of competition (competition element) and if there is no exemption (block exemption or individual exemption under Art. 101(3) TFEU). The large market shares indicate the possibility that the relevant market only consists of very few players (oligopolistic market). In that case, it might well be that parallel conduct is the natural state of the market, rather than that of a concerted practice. In that case, Art. 101(1) TFEU would not apply.

Milk is an agricultural product within the meaning of Art. 38(1) TFEU. According to Art. 42 TFEU, the TFEU chapter on competition rules applies to the production of and trade in agricultural products only to the extent determined by the European Parliament and the Council. The relevant secondary law (i.e. the Single CMO Regulation 1234/2007, and Regulation 1184/2006 applying certain rules of competition to the production of, and trade in, agricultural products) provides for a limited number of derogations from the applicability of competition rules to certain agreements and decisions of farmers and farmers’ associations. With respect to raw milk, the CMO Regulation allows joint sales by agricultural producers within certain limits.

[Relevant Charts: Chapter 9, in particular Charts 9/7-9/8; and, with respect to milk, Chart 8/30]

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