Article 101 TFEU – Competition

Why was Article 101 introduced?

Article 101 of the Treaty on the Functioning of the European Union (TFEU) prohibits agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and have as their object or effect the prevention, restriction or distortion of competition within the internal market, subject to Article 101(3). It was introduced as part of the EU’s general anti-trust rules to prohibit ‘any agreement or concerted practice which is made between two or more undertakings, which may affect trade between Member States and which has the object or effect of preventing, restricting or distorting competition.’^[1] Article 101 was, therefore, part of the EU’s drive towards ensuring that fair competition existed within the internal market. This was recognised by the European Commission when it identified the purpose as being to ‘protect effective competition by ensuring that markets remain open and competitive’.^[2] An agreement may fall within Article 101 even if it is signed outside the EU: the place of signature does not prevent the prohibition applying where its conditions are met and the agreement is implemented in the EU or has immediate, substantial and foreseeable effects there. An example is Gas Insulated Switchgear^[3] where European and Japanese companies agreed to stay out of each other’s home markets, in breach of Article 81 EC (now Article 101 TFEU) on the basis that it ‘contributed directly to the restriction of competition on the internal market.’^[4] Whilst Article 101 requires a potential effect on trade between Member States, its scope is rather wide since it is not limited to transactions that themselves cross a border.^[5] An appreciable direct or indirect, actual or potential effect on the pattern of trade between Member States must be foreseeable with a sufficient degree of probability; a mere possibility of cross-border trade is not enough.

Aims of Article 101 TFEU

The main aim of Article 101 is to protect effective competition within the internal market. Free competition is a vital part of the functioning of the internal market which is why it is imperative that provisions are in place to prohibit anti-competitive restrictions on trade. As put by Frenz; there needs to remain an ‘open, free and distortion free system of competition within the European Union.’^[6] Article 101 is not the sole basis of EU competition law: Article 102, for example, prohibits abuse of a dominant position.

Changes to the law

The prohibition now contained in Article 101 originated in Article 85 of the Treaty of Rome 1957 and was subsequently numbered Article 81 EC. It prohibits anti-competitive agreements, including price fixing. It is provided under Article 101(2) that agreements or decisions prohibited by the Article are automatically void. Where the offending provisions are severable, this does not automatically invalidate the remainder of the agreement. Competing undertakings must determine their conduct and pricing independently. This seeks to ensure the effective regulation of fair trade and prevent unfair practices being adopted. It is widely accepted that price-fixing agreements between competitors are primarily aimed at restricting competition^[7] and are generally restrictions by object. Once a restriction by object is established in its legal and economic context, actual anti-competitive effects need not be proved. Where there is no restriction by object, appreciable restrictive effects must be established. Article 101(3) remains applicable in principle, although hard-core price-fixing cartels are very unlikely to satisfy its conditions. The expressions contained within Article 101 (agreement and concerted practice) were also given a broad meaning; the requirements concerning competition and trade between Member States must nevertheless be met.

Furthermore, price-fixing arrangements need not take the form of an express agreement on a final price. An example of this can be seen in the IFTRA Rules for Producers of Glass Containers^[8] case where rules agreed by glass manufacturers restricted price competition, including through rules on prices, discounts and the exchange of trading information. Therefore, it is not just obvious restrictions that will be caught by the Article. Price fixing under Article 101 also extends to services. Dresdner Bank v Commission^[9] concerned alleged price fixing for currency-exchange services, but the Court found that the Commission had not proved the agreement. Market sharing was established in E.ON Ruhrgas v Commission^[10] concerning the French and German gas markets. Prohibitions against price fixing and market sharing have been largely welcomed as these particular types of practices are viewed extremely seriously. This was stressed by Slaughter and May when it was stated that ‘secret price-fixing or market sharing cartels are viewed as hard-core infringements which will almost always be condemned.’^[11] Article 101 does, however, provide an exemption under paragraph 3 where all four conditions are met: the agreement contributes to improving production or distribution, or to promoting technical or economic progress; consumers receive a fair share of the resulting benefit; the restrictions are indispensable to those objectives; and the agreement does not allow the elimination of competition in respect of a substantial part of the products in question.^[12] Under Article 1(2) of Regulation 1/2003, an agreement meeting those conditions is not prohibited without any prior exemption decision being required.

Block Exemption Regulations provide safe harbours for agreements meeting their conditions. The Vertical Block Exemption Regulation was replaced in 2022 (Regulation 2022/720), introducing updated rules on online sales restrictions and dual distribution. Regulations 2023/1066 and 2023/1067 replaced the research and development and specialisation block exemptions in 2023. The Commission’s 2023 Horizontal Guidelines also address sustainability agreements. Regulation 2026/877 replaced the technology-transfer block exemption from 1 May 2026, with a transitional period until 30 April 2027 for existing agreements meeting the former exemption’s conditions. Falling outside a block exemption does not itself make an agreement unlawful: individual assessment under Article 101 is then required.

Article 102 TFEU – Competition

Why was Article 102 introduced?

Article 102 of the TFEU prohibits abuse by one or more undertakings of a dominant position within the internal market or a substantial part of it, in so far as it may affect trade between Member States.^[13] It was introduced to control abuses of market power within the internal market, rather than to prohibit monopolies or dominance as such.^[14] As abuse has a detrimental effect upon society as a whole it is integral that prohibitions are placed on such unfair practices. Abuse may include unfair prices or trading conditions, limiting production to consumers’ prejudice, discriminatory terms or unrelated supplementary obligations. Unlike Article 101, this Article applies to  unilateral actions so that a party may violate this Article even if they are found to be acting alone.^[15] This is important in ensuring that any imperfections in the internal market are being effectively regulated. Article 102 controls abusive unilateral conduct; collusion is addressed by Article 101, while mergers are also subject to separate merger-control rules.^[16] Article 102 was, thus, introduced to control abuses by dominant undertakings that may otherwise be ‘free to act without any competitive restraints being exercised over their behaviour.’^[17] Arguably, both Articles 101 and 102 were introduced with the same goals in mind which were to preserve free competition within the internal market and prohibit any unfair practices from being undertaken.

Aims of Article 102 TFEU

The aim of Article 102 was to ‘protect competition on the market as a means of enhancing consumer welfare and of ensuring an efficient allocation of resources.’^[18] The prohibition originated in Article 86 of the original EEC Treaty (Treaty of Rome) and was subsequently numbered Article 82 EC before becoming Article 102 TFEU. Article 101 likewise serves the protection of competition, consumer welfare and efficient resource allocation.^[19] This was also identified by the Court of Justice in the case of Konkurrensverket v TeliaSonera Sverige^[20] when it was pointed out that the primary function of Article 102 is to ‘prevent competition from being distorted to the detriment of the public interest, individual undertakings and consumers, thereby ensuring the well-being of the European Union.’ Article 102 was, therefore, introduced so that the perceived threat to competition that was posed by those holding a dominant position within the market was capable of being combatted.^[21] Whilst the existence of a dominant position is not prohibited, the abuse of such a position is which seeks to ensure that healthy competition can be preserved.

Changes to the law

Article 102 applies to both private and public undertakings engaged in economic activity, subject to the Treaty’s specific rules, including Article 106(2) on services of general economic interest. The prohibition largely retains the substance of Article 86 of the Treaty of Rome 1957.^[22] The 2014 textbook edited by Barnard and Peers described the Commission and Court of Justice as ‘more willing to presume anti-competitive effects when a competitor is excluded from the market.’^[23] Exclusion of a competitor does not, however, automatically establish abuse. In Commercial Solvents v Commission^[24] Commercial Solvents was found to have abused its dominant position when it refused to continue supplying Zoja with a raw material, aminobutanol, used to manufacture the drug ethambutol. The Court held that a dominant supplier which reserved the raw material for making its own derivatives and refused to supply a customer manufacturing those derivatives, thereby risking the elimination of all competition from that customer, abused its dominant position.^[25]

It is arguable whether the provisions of Article 102 were extended too far in this case, although the Court did explain the abuse by reference to the risk of eliminating competition from the downstream customer. Still, the decision highlights the extent of the court’s powers when it comes to applying the extensive scope of Article 102. This is imperative in ensuring that free competition is not stifled, yet it must also be ensured that unnecessary restrictions are not being placed on traders. It appears that Article 102 has placed the onus on courts and authorities to strike a balance between ‘competition on the merits and unlawful conduct’^[26] yet whether this is an accepted approach is arguable. This is because the courts are left with the challenging task of interpreting Article 102 in each individual case and making a decision based on the particular facts. Still, provided that the objectives of Article 102 are adhered to, the provision seeks to maintain free competition.

The Commission adopted Guidelines on exclusionary abuses under Article 102 on 3 September 2026. They explain that abusive exclusionary conduct departs from competition on the merits and is capable of having exclusionary effects, assessed in the relevant factual context. Some forms of conduct attract rebuttable presumptions; dominant undertakings may advance objective justifications or efficiency defences. The Guidelines replaced the Commission’s 2009 enforcement-priorities guidance and do not amend the Treaty or displace the Court’s case law.

Position after Brexit

Articles 101 and 102 continue to apply in EU law. At the end of the transition period on 31 December 2020, they ceased to apply as general domestic prohibitions in the UK, subject to transitional arrangements and claims concerning earlier infringements. The Competition Act 1998, which already operated before Brexit, contains the corresponding Chapter I and Chapter II prohibitions. UK businesses remain subject to Articles 101 and 102 where their conduct meets the EU jurisdictional requirements, including implementation in the EU or immediate, substantial and foreseeable effects there.

Under section 60A of the Competition Act 1998, UK courts and competition authorities must generally avoid inconsistency with relevant pre-transition EU competition principles and judgments, subject to specified exceptions permitting departure. Later EU judgments may be considered but are not binding under that provision. UK and EU block exemption regimes must be considered separately. From 1 January 2025, the Chapter I prohibition was extended to cover agreements not implemented or intended to be implemented in the UK where they are likely to have an immediate, substantial and foreseeable effect on trade within the UK.

Last updated: 11 November 2026

Bibliography

Legislation

Article 101 of the Treaty on the Functioning of the European Union

Article 102 of the Treaty on the Functioning of the European Union

Case Law

Commercial Solvents v Commission Cases 6 and 7-73, 6 March 1974

Dresdner Bank v Commission Case T-44/02 OP, [2006] ECR II-3567

E.ON Ruhrgas v Commission Case T-360/09, EU:T:2012:332

Gas Insulated Switchgear Case COMP/F/38.899, 24 January 2007

IFTRA Rules for Producers of Glass Containers OJ [1974] L 160/1

Konkurrensverket v TeliaSonera Sverige Case C-52/09, [2011] ECR I-527, para 22

Text Books

Catherine Barnard and Steve Peers (eds). European Union Law (Oxford University Press, 2014)

Chris Turner and Tony Storey. Unlocking EU Law (Routledge, 2014)

Ida E Wendt. EU Competition Law and Liberal Professions: an Uneasy Relationship? (Martinus Nijhoff Publishers, 2012)

Pablo Ibanez Colomo. ‘Intel and Article 102 TFEU Case Law: Making Sense of a Perpetual Controversy’ (2014) LSE Law, Society and Economy Working Papers 29/2014, 2, 4 accessed 12 February 2016

Renato Nazzini. The Foundations of European Union Competition Law: The Objective and Principles of Article 102 (OUP Oxford, 2011)

Richard Whish and David Bailey. Competition Law (Oxford University Press, 2015)

TP Kennedy, Dermot Cahill, Vincent Power and Niamh Connery. European Law (OUP Oxford)

Walter Frenz. Handbook of EU Competition Law (Springer, 2015)

Journal Articles

Commission Guidelines on the application of Article 81(3) of the Treaty [now Article 101(3)] (OJ [2004] C101/97), para 13

European Commission. ‘Guidelines on the Application of Article 81 (3)’ EC, para 47

Field Fisher Waterhouse. ‘EU Competition Law: Article 101 and 102’ (2010) 4 accessed 11 February 2016

Slaughter and May. ‘An Overview of EU Competition Rules’ (2011) accessed 11 February 2016

Commission Guidelines on exclusionary abuses of dominance under Article 102 TFEU, C(2026) 6118 final, 3 September 2026, paragraphs 55–59, 182(a), 202–206 and 246.

Commission Regulation (EU) 2022/720; Commission Regulations (EU) 2023/1066 and 2023/1067; Commission Regulation (EU) 2026/877, Articles 10–11; Commission Horizontal Guidelines (OJ [2023] C259/1); Council Regulation (EC) 1/2003, Article 1.

Competition Act 1998, sections 2, 18 and 60A; Digital Markets, Competition and Consumers Act 2024, section 119; CMA, Guidance on the functions of the CMA after the end of the Transition Period (CMA125), paragraphs 4.1–4.24.

Footnotes