Competition Law and Cartel Agreements

This assignment involves an in-depth analysis of cartel agreements under Article 101(1) of the Treaty on the Functioning of the European Union (TFEU). It examines the validity of such contractual agreements, considering the absence of a concrete agreement and the non-existence of material proof. The assignment also references various case studies, including C-41/69 Chemiefarma v Commission of the European Communities, C-32/78 and 36-82/78 BMW Belgium v Commission of the European Communities, T-148/89 Trefilenrope SARL v Commission, and T-8/89 DSM NV v the Commission (Polypropylene).

Business Law

TABLE OF CONTENTS
Question 1........................................................................................................................................1
Application of article 157 of TFEU and legislation related to sex discrimination and equal pay
.....................................................................................................................................................1
QUESTION 3...................................................................................................................................5
Evaluating the Article 101 TFEU applicable for fair competition between undertaking in EU.5
REFERENCES..............................................................................................................................10

Question 1
Application of article 157 of TFEU and legislation related to sex discrimination and equal pay
Issue:
Two employees Ava and Joe are employed on housing department of Newtown council
as housing assistant. They have been working in the same organisation for five years. They had
been appointed at the same time. Both Ava and Joe work for same numbers of hours in office.
Joe receives a higher pay then Ava and also the employer of both is paying a higher payment to
Joe in respect of occupational then Ava. Ava is in opinion that she is a victim od sex
discrimination and shall be paid equal to Joe.
Second case is related to Ella who is an employee in Secretarial department. She has
contended that salary paid to her and other staff in secretarial department is less than the salary
paid to staff in planning department. The salary of this staff is double than the salary paid to
employees in secretarial department. All the employees in the planning department are male.
Here Ella is arguing that she has been pail half as victim of sex discrimination.
The last case is related to Sophie. She and another applicant Robert applied for a job in
planning department. Both of have equal qualification and experience. The job was offered to
Robert and Sophie was given a reason that job demands this job requires a long working hours
and a lot of skill and a job is nor for a woman. She is contending that she is a victim of sex
discrimination.All the three women in above mentioned case are victim of sex discrimination in
relation to equal pay at workplace and hiring for a job.
Law:
The European union is has levied down many laws for protection of interest of an
employee at workplace. The European legislation has an importance for gender equality and non
discrimination of employees at a national level. All the employees shall be treated with equality
and shall be paid equal.
The article 157 of TFEU of EU requires an equal pay for equal work between men and
women (Falkner, 2016). The article 19 of TFEU states primary legislation and providing legal
basis for discrimination on the grounds of racial or ethical origin, religion or belief, age, sexual
orientation and disability. This narrows down the gap of direct and indirect sex pay
discrimination.
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The another legislation is Eu principle to equal pay, this states that men and women shall
be Maud equal for equal work or equal value of work (Masselot and Maymont, 2015). Ll the
employees shall be paid same amount of salary for work performed at same level, all the
members countries of EU must follow all this legislation as they are a part of EU legislation.
Gender equality is another legislation that can be applied in the above case laws. The EU
legislation have EU gender Equity law for protection of rights of the citizens of members
countries of EU. This law testes that there must be an equal treatment for men and women in
employment. It is provided to them under occupational social security schemes. The case law of
ECJ was incorporated in the legislation to include this scheme (Employers: preventing
discrimination, 2018). The concept was related to direct and indirect determination. Direct
discrimination is related to on the basis of gender a person is treated less favourably in
comparison to another in the same occupation. Direct prohibition is prohibited unless under
special circumstances. Indirect discrimination is in form of significant disadvantage to a person
of one sax than other. The major ground of this discrimination is sex of a person. This
discrimination can be justified if the aim of ding it was legitimate and it was necessary to do so.
The another law which can be useful is occupational pension scheme. In the case law
of Barber judgement it was stated that occupational pension must be considered as pay.
Therefore, principle of equal pay is applicable for this as well (Millns, 2017). At the workplace
both men and women shall be paid equal occupation pension at same level and capacity of work.
Discrimination includes not hiring someone because of their gender. This includes saying
an applicant that you are not capable of doing this job with a disability. Not hiring a person based
on his/her gender is considered as disability by the recruiter.
In case of Dekker v stiching Vormingscentrum Voor jonge volwassen it was stated that
women shall not be discriminated when she is pregnant. another case was Marshall v
Southampton and south west Hampshire area health authority, it was decided that in
discrimination award the amount of compensation can be uncapped, there is no limit ion amount
of compensation that can be awarded by a tribunal or a court. Under this case compensation of
Marshall was 8500 euros and the tribunal awarded her a compensation of 20000 euros.
Another case law was Enderby v Frenchay Health Authority and Secretary of State for
Health (27 October 1993) in this case a female speech therapist was paid less for doing equal
work to a male pharmacists and psychologist. It was established that the burden of proof is on
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employer when there are sufficient grounds that a discrimination was based on different gender.
The employer is responsible to show that there were genuine material facts to explain the
difference which are other than gender.
Application:
In the case of Ava, the EU legislation of can be applied to sought a remedy. The Article
157 of TFEU has sufficient grounds that states that inequality in pay between her and Joe amount
to sex discrimination. rights of gender equality was also hampers by the employer of Ava. The
occupational pension paid to an employee is also a pay as stated in the EU principles of equal
pay, so here Ava can also seek a remedy for less amount of occupational paid to her in
comparison of Joe. As a remedy for this discrimination Ava can demand compensation in respect
of the additional salary which she was not paid.
Ella and her the other staff can contend together in regard to pay received by then is half
the pay received by planning department (Tudor, 2015). The law of equal rights can applied here
for a discrimination in pay because of sex discrimination. If there is breach of principle of equal
treatment between man and women in employment then necessary measures can be taken to
ensure real and effective compensation to discriminated employee.
In the case law related to Sophie, the recruiter has denied appointing her because she is a
female and can't do job as it requires more skills and working hours, here the recruiter is
considering the gender of Sophie as a disability, for this the Eu law of gender equality van be
applied and reasonable measures can be sought.
In all the above cases a remedy can be sought by application of EU legislation of gender
equality and equal treatment of men and women at workplace by the employer. The law related
to discrimination in payment of salary and recruitment on the basis of sex of the employee or
applicant must be used to seek remedy.
Conclusion:
In the case of Ava the employer is in fault of paying Ava less in compression to
Joe which amounts to sex discrimination. The rights of Ava related to equal treatment at
workplace have also been violated. Ava can file case in the tribunal to seek the remedy in from
of compensation. The amount of compensation shall be the difference in the salary of Ava and
Joe. The amount of compensation can be more than actual it is on the discretion of tribunal to
pronounce the award.
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The contention of Ella can not be held right, as she has claimed that her salary is less on
than the salary of male staff of planning department and she works in secretarial department
because she is a female (European equality law network, 2018). The contention can not hold
correct because the salary of all the staff persons of secretarial department is same irrespective of
their genders. The salary is different in both the departments and it has nothing to do with all
male staff in planning department. To hold this argument it must be proved by staff of secretarial
department that they deserve a batter or equal pay as of planning department.
Sophie can file a case in tribunal that she was refused for employment due to her being a
female. Her gender was treated as a disability for employment. The contention of employer was
wrong and a remedy to Sophie can be granted in from of job appointment and a genuine salary
for the work or she can also be award with compensation on basis of mental harassment and
infringement of her right of equality.
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QUESTION 3
Evaluating the Article 101 TFEU applicable for fair competition between undertaking in EU.
Article 101(1) TFEU legal framework:
The Article prohibits agreements among two or more independent markets operating ion
the same segmentation or operational practices. It assumes that the same level of operations and
segmentation brings the tough competition in market. However, it comprises with the two
categories of agreements such as Horizontal Agreement and vertical agreement. Thus, on which,
Horizontal agreement determines that it occurs between actual or potential competitors
functioning in the similar level of operations and have the same distributors or supply chain. On
the other side in relation with analysing the vertical agreement these are the contracts which were
being made between the parties as per having operations ate different level but they have same
distributor of manufacturing units (Competition, 2018). In accordance with general prohibition
this is the only exception which were being granted to corporations. However, mostly they have
been acknowledged and treated the creation of cartel between a competitor which incurred in
bringing the pricing fixing as well as market sharing. Thus, these are the approaches which
enforces competitors to set the fix price on the similar products and services offered in the same
market.
Therefore, it removes the chances of having competition as well as brings them the same
set of revenue they desired of. The price fixation will be helpful to the dealers as they will not
have any reduction in the pricing as well as they do not need to face bargaining from consumers.
This is comprised as the cartel system where the group of similar organisation of competitor get
involved in making the mutual agreement over price, consumers and market. Therefore, they
share a fix prices over the same products or services offered by them, share market value as well
as consumers (Cowles, 2016). Therefore, it can be said that instead of provoking competition
they believe in making profits together it will be negatively and positively affect the operating
aspects of an entity. The chances of obtaining adequate revenue or incentives will be reduced as
they will have equal set of prices over products as well as equal numbers of buyers.
In general terms the cartel system is illegal as they bring the obstacles in making
excessive profitability through selling the material in the market. In relation with the European
companies they have to disclose evidences of cartel agreements as per the leniency policy. In this
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the first company who discloses cartel will not required to pay fine or penalties while others have
to make payments of such charges. However, it has been aimed by EU government that the
removing such system will be helpful in bringing the fair competition in the market. Thus,
organisation will have appropriate revenue generation and gains over their operating activities.
General rules and regulation involved with the article 101(1)TFEU is that it will be
prohibited as it is incompatible with the internal market. It is associated with the various
operations and agreements between undertaking decisions by an associate of undertaking
(Terpan, 2015). It concerted practices which will affects the trade practices among states
members. Thus, this impacts over the prevention, restriction or distortion of rivalries within
domestic market. Moreover, it comprises with the various competition and elements such as:
Illustration 1: Composing Article 101(1) TFEU
Source (Article 101 TFEU, 2018)
 It indirectly or directly sets a fixed selling and buying prices in every trading
circumstances.
 It emphasizes on controlling and limiting the production, technical advancement, market
and investments operations in the market.
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 It brings the sharing on resources and the market environment to perform the trade
practices equally.
 It comprised with implicating the dissimilar conditions to balance or equalise the
transactional aspects with other involved parties. Thus, this will bring them the adequate
competitive advantages (Giubboni, 2018).
 It brings the contractual conclusion based on subject of acceptance from the parties based
on supplementary obligations. It will be due to their nature as well as due to commercial
utilisation made by them. Therefore, it does not have any connection with subjects
belongs to the contracts.
Article 101(2) TFEU:
This article determines the nullity as compared with the civil laws in Netherlands,
Germany, France, Belgium as well as in various European Countries. It implies that the
agreement made in relation with the Article 101(1) are totally void and inadequate as per making
improper operations. Therefore, it defines that the act of concentration is illegal and which
derived to the conclusion that it will not be treated as void (Qu, Zeng and Liu, 2018). Thus, in
approaches towards the Article it can be said that the cartel system is not a legal contract which
is not being taken into operations as it is totally wrong in terms of bringing the suitable
competition in the market.
Article 101(3) TFEU:
It brings the exemptions to the prohibition of article 101(1) based on defending the
parties which are involved with the transactions of the agreement based on such article.
Therefore, here the agreements which were being caught by under article 101(1) are legal and
valid without influences of any previous information. Therefore, it will be based on 4 elements
which are negative and positive towards defining the process of the articles such as:
 The influences of such agreements will be helpful in bringing the adequate contribution
as it improves the production and distribution of the goods and services for promoting the
technical and economic progress.
 All the consumers or buyers who get involved with the trade practices will have equally
and fair share of operations that will be profitable.
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 The restrictions levied over the articles are needed to be indispensable for attaining the
objectives (Cowles, 2016).
 There will be various agreements which enforced the parties in relation with making the
suitable changes and eliminating the competition stated in the market based on
production.
Agreements:
Agreements ate generally denoted here as per binding the companies into ah informal and
formal contract which in turn will be useful and adequate in terms of making suitable control
over various operations. In relation with the case of Chemiefarma v Commission of the European
Communities1. It can be said that, the counter parties which are actually abided by the terms of
agreements based on the various parties which in turn will be adequate and being relay on legally
binding the documents. Thus, here the parties are enrolled in the trade practices in which the
other party have to relay over the conditions made in such agreements.
In relation with ascertaining the adequate information as well as analysing the broad
scope of the article 101(1). It determined that the parties which are enrolled with any trade
agreement are much less formal concreted practices which means that it is not mandatory to have
identification of boundaries of agreements. In accordance with the case o BMW Belgium v
Commission of the European Communities2 On which the court stated that the returning and
signing document copy are not relevant with the contractual documents. Therefore, the
documents which being considered by the parties and court in terms of legal aspects must have
material and concrete truth (Giubboni, 2018). Thus, the original documentation will be quite
adequate and helpful as per making suitable operational control and contractual agreements.
However, in relation with the case of Trefilenrope SARL v Commission3 which ascertains
that the scope of agreement is needed to be considered whether it has the copy of the document.
Thus, the copy of any document must consist of the signature and the proof of the original
documents. Therefore, a copy will be helpful in \terms of claiming the operational units.
1 C-41/69 Chemiefarma v Commission of the European Communities [1970] ECR 661
2 C-32/78 and 36-82/78 BMW Belgium v Commission of the European Communities [1979] ECR 2435
3 T-148/89 Trefilenrope SARL v Commission [1995] ECR II-1063
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Similarly, in relation with the case of DSM NV v the Commission (Polypropylene)4 which
consisted of investigation against the cartel agreement made among 15 industries. Therefore,
such agreement will be based on 1 contract which are oral agreed by all. Therefore, there has
been no written proof or documentation which prove these agreements as cartel agreement. Thus,
it is a joint intention and agreement to perform the cartel contract and make the trade practices
accordingly (Qu, Zeng and Liu, 2018). Thus, implication on such techniques will be not adequate
as there have not been any written proof to it. Thus, as per analysing the validity of such
contractual agreement there is no concrete agreement as well as non-existence of the material
proof will not treat it as the cartel agreement or agreements under 101(1) article. On the other
side, it is a mutual agreement and all the parties are agreed on this joint intention that all these
parties are allowed to have cartel meeting.
4 T-8/89 DSM NV v the Commission (Polypropylene) [1991] ECR II-1833
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REFERENCES
Books and Journals
Cowles, M. G., 2016. EU Business Associations: a Historical. The Effectiveness of EU Business
Associations. p.64.
Falkner, G., 2016. The European Union’s social dimension’. European Union Politics. pp.269-
280.
Giubboni, S., 2018. Freedom to conduct a business and EU labour law. European Constitutional
Law Review. 14(1). pp.172-190.
Masselot, A. and Maymont, A., 2015. Gendering Economic and Financial Governance through
Positive Action Measures: The Compatibility of the French Real Equality Measure with
the European Union Framework. Maastricht Journal of European and Comparative
Law. 22(1). pp.57-80.
Millns, S., 2017. Gender and constitutionalism in the European Union. Constitutions and
Gender, p.252.
Qu, R., Zeng, Y. and Liu, X., 2018. Trade in Medical Products Between China and EU. World
Scientific Book Chapters. pp.59-77.
Terpan, F., 2015. Soft Law in the E uropean U nion—The Changing Nature of EU Law.
European Law Journal. 21(1). pp.68-96.
Tudor, J., 2015. DISCRIMINATORY INTERNAL TAXATION IN THE EUROPEAN UNION:
THE POWER OF THE EUROPEAN COURT OF JUSTICE TO LIMIT THE TAX
SOVEREIGNTY OF MEMBER-STATES UNDER ARTICLE 110 OF THE
TFEU. Willamette Journal of International Law and Dispute Resolution. 23(1). pp.141-
186.
Online
Article 101 TFEU. 2018. [Online]. Available through :<https://arno.uvt.nl/show.cgi?
fid=142891>.
Competition. 2018. [Online]. Available through
:<http://ec.europa.eu/competition/antitrust/overview_en.html>.
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Employers: preventing discrimination. 2018. [Online]. Available through:
<https://www.gov.uk/employer-preventing-discrimination/recruitment>.
European equality law network. 2018. [Online]. Available through:
<https://www.equalitylaw.eu/>.
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