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Originally Posted by elcreative
Again... it is not that clear cut concerning non-identical products... and, as others have said, it may be that the investigation decides that there is actually a public benefit to Agency Pricing but why wait for the results when the "experts" here can decide everything in advance...
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It really is that simple. Competitors cannot get together and agree to pricing rules that they will all follow.
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Under EU law cartels are banned by Article 101 TFEU. Art. 101 TFEU makes clear who the targets of competition law are in two stages with the term agreement "undertaking". This is used to describe almost anyone "engaged in an economic activity",[11] but excludes both employees, who are by their "very nature the opposite of the independent exercise of an economic or commercial activity",[12] and public services based on "solidarity" for a "social purpose".[13] Undertakings must then have formed an agreement, developed a "concerted practice", or, within an association, taken a decision. Like US antitrust, this just means all the same thing;[14] any kind of dealing or contact, or a "meeting of the minds" between parties. Covered therefore is a whole range of behaviour from a strong handshaken, written or verbal agreement to a supplier sending invoices with directions not to export to its retailer who gives "tacit acquiescence" to the conduct.[15] In the language of Article 101(1), prohibited are,
"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 common market."
This includes both horizontal (e.g. between retailers) and vertical (e.g. between retailers and suppliers) agreements, effectively outlawing the operation of cartels within the EU.
Article 101 has been construed very widely to include both informal agreements (gentlemen's agreements) and concerted practices where firms tend to raise or lower prices at the same time without having physically agreed to do so. However, a coincidental increase in prices will not in itself prove a concerted practice, there must also be evidence that the parties involved were aware that their behaviour may prejudice the normal operation of the competition within the common market. This latter subjective requirement of knowledge is not, in principle, necessary in respect of agreements. As far as agreements are concerned the mere anticompetitive effect is sufficient to make it illegal even if the parties were unaware of it or did not intend such effect to take place.
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If there were any sort of actual agreement made, they are cooked.
If Apple made an offer of an agency agreement, and they all completely independently decided to accept it, then they may well be in the clear.