The “Acceptable” Cartel? Horizontal Agreements Within EU Competition Law: Introduction

AuthorNiamh Dunne,Imelda Maher
DOI10.1177/0003603X20929126
Published date01 September 2020
Date01 September 2020
Article
The “Acceptable” Cartel?
Horizontal Agreements
Within EU Competition
Law: Introduction
Niamh Dunne* and Imelda Maher**
It is uncontentious that hard core cartels are always contrary to competition law, an observation that
holds true in every system that has antitrust provisions regulating restrictive agreements.
1
Yet it is
equally accepted that literalism is not a hallmark of contemporary antitrust policy. Accordingly,
although competition law is inherently skeptical of coordination between would-be competitors, not
every horizontal combination is treated as a hard core cartel as such. The prohibition of hard core
cartels thus encompasses a focus on both form and substance. To put the point somewhat glibly, it is
not enough that a combination looks like a cartel and even walks like a cartel; it needs to “quack” like
one too.
2
This straightforward observation opens the door to what may be termed “acceptable” cartels:
instances of horizontal coordination that would appear on their face to be plain vanilla cartel behavior,
but where the broader context provides a degree of legitimation. How we go about drawing the line
between acceptable and unacceptable horizontal coordination from the perspective of both competi-
tion law and practice is, however, the rather thornier question that is addressed in this special issue.
This problem has come to the fore in the past decade in the context of Article 101 of the Treaty on
the Functioning of the European Union (TFEU), which regulates anticompetitive agreements,
* Department of Law, London School of Economics, London, UK
** Sutherland School of Law, University College Dublin, Dublin, Ireland
Corresponding Author:
Niamh Dunne, Department of Law, London School of Economics, Houghton Street, London WC2A 2AE, UK.
Email: n.m.dunne@lse.ac.uk
1. See Niamh Dunne, Characterizing Hard Core Cartels Under Article 101 TFEU,infra this issue, 65 THE ANTITRUST BULLETIN
376 (2020). See also Imelda Maher, Competition Law and Transnational Private Regulatory Regimes: Marking the Cartel
Boundary,38J.L.&S
OC. 14 (2011), the 2019-2022 Work Plan of The International Competition Network Cartel Working
Group (the network has over 100 member) https://www.internationalcompetitionnetwork.org/wp-content/uploads/2019/07/
WorkPlan2019-22CWG.pdf; MARC IVALDI,ALEKSANDRA KHIMICH &FRE
´DE
´RIC JENNY,MEASURING THE ECONOMIC EFFECTS OF
CARTELS IN DEVELOPING COUNTRIES,FINAL REPORT UNCTAD (May 12, 2014), who reviewed 245 hard core cartels in 20
developing countries over an 18-year period.
2. The original adage (about ducks) encapsulates the idea that it is possible to identify something from its observed
characteristics. Its association with a celebrated eighteenth-century automated duck, however, suggests that observed
characteristics may not always be determinative; see Jessica Riskin, The Defecating Duck, or the Ambiguous Origins of
Artificial Life,29C
RIT.INQ. 599 (Summer 2003).
The Antitrust Bulletin
2020, Vol. 65(3) 335–339
ªThe Author(s) 2020
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