Rethinking the Intragroup Exemption after Ecoservice

Abstract

This paper discusses the exemption of Article 101 TFEU to agreements within a group of entities. This privilege, as often called, has traditionally rested on two pillars: the control that one party possesses over the other, and the absence of market independence between the parties. The 2018 decision of the Court of Justice of the European Union in Ecoservice, followed in France with AgriMer seems to disregard that second element, with the effect of substantially expanding the scope of the exemption. The paper questions whether Ecoservice intended to change the law in that regard and argues for maintaining the prohibition to certain intragroup situations.

Keywords: competition law, notion of undertaking, agreements between undertakings, intragroup exemption, economic unit