Article 101, 102 (formerly Articles 81 and 82 and before that 85, 86)

The two fundamental European Competition Law provisions were Articles 85 and 86 of the Treaty of Rome, the treaty that founded the European Economic Community (EEC) that evolved into the European Union and remains, though amended, the fundamental EU constitutional document. The drafters of one amending treaty to the Treaty of Rome, the Treaty of Amsterdam, decided it was necessary to renumber the two Articles 81 and 82 from 85 and 86; the revised Treaty on the Functioning of the European Union (TFEU) then renumbered the Articles 101 and 102, so that now depending on age and decrepitude, lawyers and judges regularly will use any of 3 numbers to refer to the same treaty section, while the usage in legal rulings and decisions depends on the date they were written/issued, thus causing wholesale confusion.

Article 101 prohibits cartels and anticompetitive agreements, while Article 102 prohibits abuse of a dominant position. Article 53 and 54 of the EEA agreement are essentially the same provisions and effectively extend European Competition law to cover the EEA countries, i.e., Norway, Iceland, and Liechtenstein. The titles “TFEU,” “Treaty of Rome,” “Treaty of Amsterdam,” “EC Treaty” as well as the former title “EEC Treaty” are often used and appear in legislation and case-law. Most EU countries have enacted analogues of Articles 81 and 82 in their domestic competition laws and the provisions have also been copied in competition laws around the world.

The impact of both provisions is constrained by the De Minimis notice. Article 101 provides that agreements, arrangements, and understandings between parties that may reduce competition in the EU are all prohibited in principle, but may be “exempted” if they are on the whole economically beneficial (this burden of operating this exemption system, and the attendant delay in reviewing agreements has resulted in the Commission enacting Block Exemptions).