EPSO Competition Policy: Articles 101-109 TFEU for the FRMCQ

The Field Without a Notice

There is no open EPSO competition dedicated to Competition Policy, and none announced. What exists is a syllabus without a front door.

DG COMP is staffed largely from Law and Economics reserve lists, and lawyer competitions covering competition, financial and EMU law appear on EPSO's forward planning. So the material below is examined — inside a broader field-related MCQ, alongside other legal or economic content, rather than in a Notice with "Competition Policy" in the title.

That has one practical consequence worth stating plainly. You are unlikely to face thirty questions on Article 101. You are quite likely to face four or five, mixed into a Law or Economics paper, and those four or five are the ones your competitors treat as a side topic. Competition law rewards precision more than breadth: a small number of provisions, each with an exact structure, tested on whether you know the structure or only the gist.

For how field-related MCQs are built across every specialist track, see our guide to the EPSO specialist competitions FRMCQ. If you want the same treatment for the underlying Treaty provisions, we have a standalone piece on Articles 101 and 102 TFEU.

The Format

The field-related MCQ across specialist tracks is 30 questions in 40 minutes, with 15 correct to pass. Under the current EPSO model it is the ranking instrument — reasoning tests are pass-or-fail gates that do not feed your final score.

Article 101 — Read All Three Paragraphs

Most candidates know paragraph 1. Questions are written from paragraphs 2 and 3.

101(1) — The Prohibition

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.

Three forms of conduct, not one. And "object or effect" is disjunctive: a restriction by object needs no proof of actual effect. Both details are standard distractor territory.

The Treaty then lists, "in particular", five examples: fixing purchase or selling prices or other trading conditions; limiting or controlling production, markets, technical development or investment; sharing markets or sources of supply; applying dissimilar conditions to equivalent transactions, placing trading parties at a competitive disadvantage; and making contracts subject to supplementary obligations with no connection to their subject. The list is illustrative, not exhaustive — "in particular" is doing real work.

101(2) — Automatic Voidness

Any agreements or decisions prohibited pursuant to this Article shall be automatically void. One sentence, and it decides questions. No Commission decision is required for voidness to bite; the clause operates by force of the Treaty. An option offering "void once the Commission so decides" is wrong, and it is wrong in a way that sounds administratively sensible.

101(3) — The Four Conditions

Paragraph 1 may be declared inapplicable to an agreement, a decision, a concerted practice, or a category of any of them, 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:

• impose restrictions not indispensable to attaining those objectives;
• afford the undertakings the possibility of eliminating competition in respect of a substantial part of the products in question.

Two positive and two negative, and they are cumulative — failing one is enough. The word "category" is what makes block exemption regulations possible, which is the bridge to the next section.

Block Exemptions — Where 101(3) Becomes Operational

The Vertical Block Exemption Regulation, Commission Regulation (EU) 2022/720 of 10 May 2022, declares Article 101(1) inapplicable to vertical agreements to the extent they contain vertical restraints. Its adopted basis is Regulation No 19/65/EEC, which is why a block exemption is a Commission regulation rather than a Council act.

The mechanics worth carrying into an exam:

The 30 % thresholds. The exemption applies on condition that the supplier's market share does not exceed 30 % of the relevant market. Above that threshold there is no presumption either way — the agreement is not presumed caught by 101(1), and it is not presumed to fail 101(3). It simply loses the safe harbour and must be assessed individually. Candidates routinely read the threshold as a prohibition; it is a boundary of the exemption.

Duration. The exemption of non-compete obligations is limited to obligations not exceeding five years.

Online intermediation services. The exemption does not apply to vertical agreements on the provision of online intermediation services where the provider is itself a competing undertaking on the relevant market for the intermediated goods or services — the hybrid-platform carve-out. This is where digital-markets questions usually enter through the back door.

Withdrawal. The Commission may withdraw the benefit of the Regulation under Article 29(1) of Regulation (EC) No 1/2003 where an agreement covered by the block exemption nevertheless has incompatible effects. When the Commission or a national competition authority withdraws the benefit, it bears the burden of proving both that the agreement falls within Article 101(1) and that it fails at least one of the four conditions of 101(3). Where parallel networks of similar vertical agreements cover more than 50 % of a given market, the Commission may by regulation declare the block exemption inapplicable to agreements containing specific restraints.

Turnover tolerance. The exemption remains applicable where the total annual turnover threshold is exceeded by no more than 10 % over two consecutive financial years.

Article 102 — Unilateral Conduct

Any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it is prohibited as incompatible with the internal market, in so far as it may affect trade between Member States.

Three things follow directly from that wording. Dominance itself is not prohibited — abuse is. "One or more undertakings" admits collective dominance. And there is no exemption paragraph: Article 102 has nothing equivalent to 101(3).

The illustrative abuses: imposing unfair purchase or selling prices or other unfair trading conditions, directly or indirectly; limiting production, markets or technical development to the prejudice of consumers; applying dissimilar conditions to equivalent transactions, placing trading parties at a competitive disadvantage; and tying — making contracts subject to supplementary obligations with no connection to their subject.

Two of those four read almost identically to items in the Article 101(1) list. That overlap is deliberate on the Treaty's part and useful on yours: the same conduct is caught under 101 when it is agreed and under 102 when it is imposed unilaterally by a dominant firm.

Article 103 TFEU supplies the enforcement architecture. The Council, on a Commission proposal and after consulting Parliament, lays down the regulations or directives giving effect to Articles 101 and 102 — designed in particular to provide for fines and periodic penalty payments, to lay down detailed rules for applying 101(3), to define the scope of 101 and 102 in different branches of the economy, and to define the respective functions of the Commission and the Court of Justice. Regulation (EC) No 1/2003 is the instrument adopted on that basis, and under it national competition authorities apply Articles 101 and 102 in individual cases.

Merger Control — The EU Merger Regulation

Council Regulation (EC) No 139/2004 of 20 January 2004, published in OJ L 24 of 29 January 2004.

The Thresholds

A concentration has a Union dimension where:

• the combined aggregate worldwide turnover of all the undertakings concerned is more than EUR 5 000 million; and
• the aggregate EU-wide turnover of each of at least two of the undertakings concerned is more than EUR 250 million.

Both limbs must be met — and the second is not about the transaction, it is about at least two parties individually. The classic wrong answer converts "and" into "or", or drops "each of at least two".

Turnover means products sold and services provided in the Union or in the Member State concerned. Where a concentration consists of acquiring parts of an undertaking, only the turnover relating to the parts being acquired counts on the seller's side. And the aggregate turnover of an undertaking concerned is calculated by adding the turnovers of a defined group of connected undertakings — not the acquired business in isolation.

The Substantive Test

A concentration which would significantly impede effective competition, in the internal market or a substantial part of it, in particular as a result of the creation or strengthening of a dominant position, shall be declared incompatible.

Dominance is an example of the harm, not the test itself. The Regulation directs the Commission to take into account the need to maintain and develop effective competition given the structure of the markets concerned; the market position, economic and financial power of the undertakings; alternatives available to suppliers and users; access to supplies or markets; legal or other barriers to entry; supply and demand trends; the interests of intermediate and ultimate consumers; and technical and economic progress, provided it benefits consumers and does not obstruct competition.

Where a full-function joint venture has as its object or effect the coordination of the competitive behaviour of undertakings that remain independent, that coordination is appraised under the criteria of Article 101(1) and (3). Merger control and antitrust meet in the same transaction.

The Procedure

Article 7 — suspension. A concentration with a Union dimension shall not be implemented before notification or until declared compatible. Implementing early is gun-jumping.

Article 10 — time limits. Article 6(1) decisions are taken within 25 working days at most, running from the working day after receipt of a complete notification, increased to 35 working days in defined cases. Where the Commission has taken no decision within the applicable limits, the concentration is deemed compatible. Silence favours the parties — the opposite of the State aid regime, which is worth noticing because questions like to pair them.

Referrals. A Member State request may be made within 15 working days of notification. Pre-notification referrals to the Commission are particularly pertinent where a concentration would affect competition beyond one Member State's territory, or where it could be reviewed under the competition laws of three or more Member States.

Fines. The Commission may impose fines not exceeding 10 % of the aggregate turnover of the undertaking concerned, where intentionally or negligently the undertaking commits the infringements listed — including implementing a concentration in breach of Article 7, or in contravention of a condition attached to a decision under Article 6(1)(b) or Article 8. It may also take interim measures to restore or maintain conditions of effective competition. An Advisory Committee on concentrations is consulted before decisions under Article 8(1) to (6) and Articles 14 or 15.

State Aid — Articles 107 to 109 TFEU

Article 107(1) — The Definition

Save as otherwise provided in the Treaties, 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, in so far as it affects trade between Member States, be incompatible with the internal market.

That single sentence contains the cumulative criteria the whole regime turns on: State origin or State resources, an advantage, selectivity, distortion of competition, and effect on trade. "Threatens to distort" means actual distortion need not be proved. "In any form whatsoever" means the form of the measure is irrelevant — a tax exemption qualifies as readily as a grant.

107(2) and 107(3) — Shall Versus May

Article 107(2) lists aid which shall be compatible: aid of a social character granted to individual consumers without discrimination as to the origin of the products; aid to make good the damage caused by natural disasters or exceptional occurrences; and aid to areas of Germany affected by the division of Germany, subject to a review clause introduced by the Treaty of Lisbon.

Article 107(3) lists aid which may be considered compatible — a discretionary assessment for the Commission.

Shall versus may is the whole distinction, and it is the most reliable single-word trap in the State aid syllabus. A separate provision, Article 93 TFEU, makes aid compatible where it meets the needs of coordination of transport or represents reimbursement for discharging public service obligations.

Article 108 — Procedure

Paragraph 1: the Commission, in cooperation with Member States, keeps all existing aid systems under constant review and proposes any appropriate measures required by the development or functioning of the internal market.

Paragraph 2: if, after giving notice to the parties concerned to submit comments, the Commission finds aid incompatible or misused, it decides that the State shall abolish or alter the aid within a period the Commission determines. If the State does not comply, the Commission or any other interested State may refer the matter directly to the Court of Justice, in derogation from Articles 258 and 259 — no pre-litigation infringement procedure.

Paragraph 3: plans to grant new aid must be notified in sufficient time, and shall not be put into effect before the Commission has authorised them. That is the standstill clause, and it generates the definition that matters: unlawful aid means new aid put into effect in contravention of Article 108(3).

Hold that apart from incompatibility. Unlawful is procedural; incompatible is substantive. The Commission examines all cases of unlawful aid.

The Procedural Regulation fills in the rest. Aid means any measure fulfilling all the criteria of Article 107(1). An aid scheme is an act under which individual awards may be made without further implementing measures, to undertakings defined in a general and abstract way. Individual aid is aid not awarded under a scheme, plus notifiable awards under a scheme. Misuse of aid is aid used in breach of a decision. Existing aid covers, among other categories, aid predating the entry into force of the Treaties in the Member State concerned and aid authorised by the Commission or the Council.

Where an existing scheme is no longer compatible, the Commission proposes appropriate measures under Article 108(1) and opens the Article 108(2) procedure if the Member State declines to implement them. The Commission may revoke a decision based on incorrect information, and may request market information from any Member State, undertaking or association once it has opened the formal investigation procedure. Article 109 TFEU empowers the Council to make regulations for the application of Articles 107 and 108.

Five Distinctions Worth Building Once

"Void" versus "annulled". Article 101(2) voidness is automatic. No decision, no court order, no notification.

Cumulative versus alternative. The four conditions of 101(3) are cumulative. The two EUMR turnover limbs are cumulative. The Article 107(1) criteria are cumulative. Options that offer you "any one of the following" are exploiting a real pattern.

Shall versus may. 107(2) is mandatory compatibility; 107(3) is discretionary. Article 10 EUMR deems a concentration compatible on Commission silence; Article 108(3) makes aid unlawful on Member State silence. Same structural idea, opposite defaults.

Unlawful versus incompatible. A procedural breach and a substantive failure. Independent of each other.

Safe harbour versus prohibition. Exceeding the 30 % VBER threshold removes an exemption; it does not create an infringement. The same logic applies to every block exemption and to the de minimis framework.

How to Study This Field

Read Articles 101 to 109 TFEU in full. It is roughly four pages, it is the source of most questions, and the exact wording — "object or effect", "automatically void", "in so far as it affects trade" — is what distinguishes the right option from the plausible one.

Then read Article 1, Article 2, Article 7 and Article 10 of Regulation 139/2004. Thresholds, substantive test, suspension, deadlines: four articles carrying most of the merger syllabus.

Then skim the recitals of VBER 2022/720. Recitals in block exemptions are unusually explanatory — they say why each threshold exists, which is exactly the reasoning a well-written distractor tries to invert.

Then practise under time. Eighty seconds per question is what turns four pages of Treaty text into marks. You can drill the competition-law block on EU-now in short sessions, and ask EUgenio when a provision refuses to resolve — it answers from the same official texts cited here, and says so when it has no source rather than inventing one.

References and Sources

All figures and quotations in this article come from official EU sources:

• Consolidated Treaty on the Functioning of the European Union — Articles 101 to 109
• Council Regulation (EC) No 139/2004 — EU Merger Regulation (OJ L 24, 29.1.2004)
• Council Regulation (EC) No 1/2003 — implementation of Articles 101 and 102 (OJ L 1, 4.1.2003)
• Commission Regulation (EU) 2022/720 — Vertical Block Exemption Regulation (OJ L 134, 11.5.2022)
• Council Regulation (EU) 2015/1589 of 13 July 2015 — State aid procedural rules
• DG COMP — Competition policy

Where this article describes what a question is likely to test, that is our editorial judgement based on the format of published field-related MCQs — not text from any Notice of Competition. The legal provisions, figures and deadlines are quoted from the instruments listed above.