PART III: THE POLICIES AND FUNCTIONING OF THE UNION
TITLE III - INTERNAL POLICIES AND ACTION
CHAPTER I - INTERNAL MARKET
SECTION 5 - RULES ON COMPETITION
Subsection 1- Rules applying to undertakings
ARTICLE III-161
1. The following shall be prohibited as incompatible with the internal market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market, and in particular those which:
(a) directly or indirectly fix purchase or selling prices or any other trading
conditions;
(b) limit or control production, markets, technical development, or investment;
(c) share markets or sources of supply;
(d) apply dissimilar conditions to equivalent transactions with other trading
parties, thereby
(e) make the conclusion of contracts subject to acceptance by the other parties
of supplementary obligations which, by their nature or according to commercial
usage, have no connection with the subject of such contracts.
2. Any agreements or decisions prohibited pursuant to this Article shall be automatically void.
3. Paragraph 1 may, however, be declared inapplicable in the case of:
– any agreement or category of agreements between undertakings,
– any decision or category of decisions by associations of undertakings,
– any concerted practice or category of concerted practices,
which contributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, and which does not:
(a) impose on the undertakings concerned restrictions which are not indispensable
to the attainment of these objectives;
(b) afford such undertakings the possibility of eliminating competition in respect
of a substantial part of the products in question.
ARTICLE III-162
Any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited as incompatible with the internal market insofar as it may affect trade between Member States.
Such abuse may, in particular, consist in:
(a) directly or indirectly imposing unfair purchase or selling prices or other
unfair trading conditions;
(b) limiting production, markets or technical development to the prejudice of
consumers;
(c) applying dissimilar conditions to equivalent transactions with other trading
parties, thereby placing them at a competitive disadvantage;
(d) making the conclusion of contracts subject to acceptance by the other parties
of supplementary obligations which, by their nature or according to commercial
usage, have no connection with the subject of such contracts.
ARTICLE III-163
The Council, on a proposal from the Commission, shall adopt the European regulations to give effect to the principles set out in Articles III-161 and III-162. It shall act after consulting the European Parliament.
Such regulations shall be designed in particular:
(a) to ensure compliance with the prohibitions laid down in Article III-161(1)
and in Article III-162 by making provision for fines and periodic penalty payments;
(b) to lay down detailed rules for the application of Article III-161(3), taking
into account the need to ensure effective supervision on the one hand, and to
simplify administration to the greatest possible extent on the other;
(c) to define, if need be, in the various branches of the economy, the scope
of Articles III-161 and III-162;
(d) to define the respective functions of the Commission and of the Court of
Justice of the European Union in applying the provisions laid down in this paragraph;
(e) to determine the relationship between Member States' laws and this Subsection
as well as the European regulations adopted pursuant to this Article.
ARTICLE III-164
Until the entry into force of the European regulations adopted pursuant to Article III-163, the authorities in Member States shall rule on the admissibility of agreements, decisions and concerted practices and on abuse of a dominant position in the internal market in accordance with their national law and Article III-161, in particular paragraph 3, and Article III-162.
ARTICLE III-165
1. Without prejudice to Article III-164, the Commission shall ensure the application of the principles set out in Articles III-161 and III-162. On application by a Member State or on its own initiative, and in cooperation with the competent authorities in the Member States, which shall give it their assistance, the Commission shall investigate cases of suspected infringement of these principles. If it finds that there has been an infringement, it shall propose appropriate measures to bring it to an end.
2. If the infringement referred to in paragraph 1 is not brought to an end,
the Commission shall adopt a reasoned European decision recording the infringement
of the principles. The Commission may publish its decision and authorise Member
States to take the measures, the conditions and details of which it shall determine,
needed to remedy the situation.
3. The Commission may adopt European regulations relating to the categories
of agreement in respect of which the Council has adopted a European regulation
pursuant to Article III-163, second paragraph, (b).
ARTICLE III-166
1. In the case of public undertakings and undertakings to which Member States grant special or exclusive rights, Member States shall neither enact nor maintain in force any measure contrary to the Constitution, in particular Article I-4(2) and Articles III-161 to III-169.
2. Undertakings entrusted with the operation of services of general economic interest or having the character of an income-producing monopoly shall be subject to the provisions of the Constitution, in particular to the rules on competition, insofar as the application of such provisions does not obstruct the performance, in law or in fact, of the particular tasks assigned to them. The development of trade must not be affected to such an extent as would be contrary to the Union's interests.
3. The Commission shall ensure the application of this Article and shall, where
necessary, adopt appropriate European regulations or decisions.
Subsection 2 - Aids granted by Member States
ARTICLE III-167
1. Save as otherwise provided in the Constitution, any aid granted by a Member
State or through State resources in any form whatsoever which distorts or threatens
to distort competition by favouring certain undertakings or the production of
certain goods shall, insofar as it affects trade between Member States, be incompatible
with the internal market.
2. The following shall be compatible with the internal market:
(a) aid having a social character, granted to individual consumers, provided that such aid is granted without discrimination related to the origin of the products concerned;
(b) aid to make good the damage caused by natural disasters or exceptional occurrences;
(c) aid granted to the economy of certain areas of the Federal Republic of Germany
affected by the division of Germany, insofar as such aid is required in order
to compensate for the economic disadvantages caused by that division. Five years
after the entry into force of the Treaty establishing a Constitution for Europe,
the Council, acting on a proposal from the Commission, may adopt a European
decision repealing this point.
3. The following may be considered to be compatible with the internal market:
(a) aid to promote the economic development of areas where the standard of living is abnormally low or where there is serious underemployment, and of the regions referred to in Article III-424, in view of their structural, economic and social situation;
(b) aid to promote the execution of an important project of common European
interest or to remedy a serious disturbance in the economy of a Member State;
(c) aid to facilitate the development of certain economic activities or of certain
economic areas, where such aid does not adversely affect trading conditions
to an extent contrary to the common interest;
(d) aid to promote culture and heritage conservation where such aid does not
affect trading conditions and competition in the Union to an extent that is
contrary to the common interest;
(e) such other categories of aid as may be specified by European regulations or decisions adopted by the Council on a proposal from the Commission.
ARTICLE III-168
1. The Commission, in cooperation with Member States, shall keep under constant review all systems of aid existing in those States. It shall propose to the latter any appropriate measures required by the progressive development or by the functioning of the internal market.
2. If, after giving notice to the parties concerned to submit their comments,
the Commission finds that aid granted by a Member State or through State resources
is not compatible with the internal market having regard to Article III-167,
or that such aid is being misused, it shall adopt a European decision requiring
the Member State concerned to abolish or alter such aid within a period of time
to be determined by the Commission.
If the Member State concerned does not comply with this European decision within
the prescribed time, the Commission or any other interested Member State may,
in derogation from Articles III-360 and III-361, refer the matter to the Court
of Justice of the European Union directly.
On application by a Member State, the Council may adopt unanimously a European
decision that aid which that State is granting or intends to grant shall be
considered to be compatible with the internal market, in derogation from Article
III-167 or from European regulations provided for in Article III-169, if such
a decision is justified by exceptional circumstances. If, as regards the aid
in question, the Commission has already initiated the procedure provided for
in the first
subparagraph of this paragraph, the fact that the Member State concerned has
made its application to the Council shall have the effect of suspending that
procedure until the Council has made its attitude known.
If, however, the Council has not made its attitude known within three months of the said application being made, the Commission shall act.
3. The Commission shall be informed by the Member States, in sufficient time
to enable it to submit its comments, of any plans to grant or alter aid. If
it considers that any such plan is not compatible with the internal market having
regard to Article III-167, it shall without delay initiate the procedure provided
for in paragraph 2 of this Article. The Member State concerned shall not put
its proposed measures into effect until this procedure has resulted in a final
decision.
4. The Commission may adopt European regulations relating to the categories of State aid that the Council has, pursuant to Article III-169, determined may be exempted from the procedure provided for by paragraph 3 of this Article.
ARTICLE III-169
The Council, on a proposal from the Commission, may adopt European regulations
for the application of Articles III-167 and III-168 and for determining in particular
the conditions in which Article III-168(3) shall apply and the categories of
aid exempted from the procedure provided for in Article 168(3). It shall act
after consulting the European Parliament.