EU Antitrust Law

Treaty Framework

EU competition law derives from the Treaty on the Functioning of the European Union (TFEU) . Article 101 TFEU prohibits anticompetitive agreements, decisions by associations of undertakings, and concerted practices that may affect trade between Member States and prevent, restrict, or distort competition within the internal market. Article 102 TFEU prohibits abuse of a dominant position within the internal market or a substantial part of it. The European Commission—specifically the Directorate-General for Competition (DG COMP) —is the primary enforcer, exercising powers of investigation, decision, and sanction, subject to review by the General Court and the Court of Justice of the European Union (CJEU) .

Article 101 TFEU

Article 101(1) prohibits agreements having as their object or effect the restriction of competition. Object restrictions (price fixing, output limitation, market sharing, bid rigging) are considered inherently harmful, requiring no effects analysis. Non-hard-core agreements may benefit from the block exemption regulations, which cover categories of vertical agreements (Regulation 330/2010), technology transfer (Regulation 316/2014), research and development (Regulation 1217/2010), and specialization (Regulation 1218/2010). Agreements falling outside block exemptions may qualify for individual exemption under Article 101(3) if they meet four cumulative conditions: efficiency gains, fair consumer share, indispensable restrictions, and no elimination of competition.

Article 102 TFEU

Article 102 prohibits abuse by one or more undertakings of a dominant position. The concept of abuse is objective: conduct that influences the structure of a market where the degree of competition is already weakened and that, through recourse to methods different from those governing normal competition, has the effect of hindering the maintenance or development of the level of competition still existing. The European Commission’s Guidance on Enforcement Priorities (2009) identifies exclusionary abuses—predatory pricing, margin squeeze, exclusive dealing, rebates, refusal to supply, and tying. In Intel v Commission (2017), the CJEU required the Commission to conduct an as-efficient-competitor (AEC) test for rebate schemes, holding that exclusivity rebates are not per se unlawful but must be assessed for their capacity to foreclose. In Google Shopping (2017, upheld 2024), the Commission fined Google €2.42 billion for abusing dominance in general search by privileging its own comparison-shopping service through preferential placement in search results.

EU Merger Regulation

The EU Merger Regulation (EUMR) 139/2004 establishes a mandatory premerger notification regime for concentrations with a “Community dimension,” determined by worldwide, EU, and Member State turnover thresholds. The Commission assesses whether a concentration would significantly impede effective competition (SIEC) , particularly through the creation or strengthening of a dominant position. Phase I (25 working days) and Phase II (90 working days) reviews follow a structured analytical framework: market definition, competitive assessment (coordinated and unilateral effects, non-coordinated effects in oligopolistic markets), efficiency defense, and failing-firm defense. Landmark decisions include Microsoft/Tyco (2003, conditional), GE/Honeywell (2001, prohibition), Deutsche Börse/NYSE Euronext (2012, prohibition), and Dow/DuPont (2017, conditional divestiture of pesticides and petrochemicals).

Private Enforcement

Directive 2014/104/EU on actions for damages harmonizes private enforcement across Member States. The Directive establishes the passing-on defense (a defendant may argue that the overcharge was passed to indirect purchasers), prima facie evidentiary effect of Commission decisions, disclosure of evidence with a proportionality mechanism, limitation periods of at least five years, and joint and several liability with a limitation for small and medium-sized enterprises. The CJEU’s reasoning in Courage v. Crehan (2001) and Manfredi (2006) established that any individual may claim damages for loss caused by an infringement, and Otis (2019) confirmed that the Commission may intervene in national damages proceedings to ensure uniform application.

The Digital Transformation: DMA and DSA

The Digital Markets Act (DMA) (Regulation 2022/1925) and Digital Services Act (DSA) (Regulation 2022/2065) represent a paradigm shift in EU digital regulation, operating alongside traditional antitrust enforcement. The DMA imposes ex ante obligations on designated “gatekeepers”—platforms with significant impact on the internal market, strong intermediation positions, and entrenched and durable market positions. Obligations include prohibitions on self-preferencing, restrictions on data combination without consent, interoperability requirements for messaging services, and transparency obligations for advertising. Non-compliance may result in fines up to 20% of worldwide turnover and, ultimately, behavioral or structural remedies including break-up. The DMA does not prejudice the application of Articles 101–102 TFEU, and the Commission has indicated it will apply both instruments in parallel, with the DMA’s ex ante framework designed to address structural competition problems in digital markets more rapidly than traditional ex post antitrust enforcement.