The 'Acceptable' Cartel? Horizontal Agreements under Competition Law and Beyond


Friday 22 March 2019, London School of Economics and Political Science

A Workshop Reflecting McEllistrim v Ballymacelligott Co-Operative Agricultural and Dairy Society Limited [1919] AC 548

Deadline for abstract submissions: 31 January 2019

The optimal treatment of potentially restrictive horizontal agreements is one of the most discussed and disputed questions within contemporary competition law. Taking as its starting point the centenary of McEllistrim v Ballymacelligot Co-op, a House of Lords decision on the restraint of trade doctrine, this one-day workshop will explore regulatory approaches to horizontal coordination in competition law and beyond.

Beyond ever-more proactive enforcement efforts against hard-core cartels, coordination between rivals raises complex issues regarding the extent to which private restrictions on competition should be permissible in pursuit of overall efficiency or other socially-important goals.  In the realm of EU competition law, recent years have seen a stream of cases considering the treatment of restrictive horizontal arrangements: from the much-debated Cartes Bancaires judgment and its follow-up Maxima Latvija; to the treatment of pay-to-delay agreements in Lundbeck and Servier; to issues surrounding payment systems in cases like MasterCard and Visa; to potential hub-and-spoke coordination in cases like ETURAS (and the spectre of algorithmic coordination); to the EFTA’s Court’s approach to joint tendering in Ski Taxis; the Commission’s quixotic case against the membership rules of the International Skating Union; and the highly ambiguous ‘cartel’ conduct condemned in the Hoffmann-LaRoche and Novartis preliminary ruling.  

Cases of this sort raise two related questions.  First, when should such arrangements fall within the so-called “object box,” or should they instead be analysed by reference to their market effects in practice under Article 101(1) TFEU, or domestic competition rules like section 2 of the Competition Act 1998?  And second, are current approaches to exemption under Article 101(3) TFEU (or its domestic equivalent under section 9 of the Competition Act 1998) adequate to accommodate efficiency-enhancing behaviour resulting from horizontal coordination?

The prompt for this workshop is the centenary of a storied House of Lords decision on the restraint of trade doctrine, McEllistrim v Ballymacelligot Co-op, delivered on 19 March 1919.  The facts are all the more extraordinary because it concerned a small agricultural co-operative organisation in a geographically-isolated part of Ireland.  The superior court’s ruling, that a membership rule requiring each member to sell his milk to the society unless released by the other members from doing so violated the restraint of trade doctrine, was both highly significant in the context of the rural Irish economy at the time, and a precursor to the treatment of such issues within competition law. 

The workshop will explore the circumstances in which agreements between competitors can be deemed to fall outside the constraints of competition law, considering both antitrust and self-regulation approaches, and addressing EU law and beyond.  The organisers are interested in receiving paper proposals on themes related to the conference topic, in particular:

  • Private law approaches to the regulation of horizontal agreements, including theories of self-regulation;
  • The treatment of non-cartel horizontal arrangements under EU competition law, in theory and practice; and
  • The treatment of non-cartel horizontal arrangements in comparative competition law perspective, both at Member State-level and within other competition regimes internationally.

The deadline for applications to participate in this workshop is 31 January 2019. Applications should be submitted by email to N.M.Dunne@lse.ac.uk, accompanied by a paper abstract of up to 500 words, setting out the proposed topic of the paper and its relevance to the workshop theme. Successful applicants will be informed by early February 2019. A full draft of the paper will be required one week in advance of the workshop. 

The workshop organisers can provide accommodation in London, and some financial assistance may be available to assist with transport costs. The conference is organised jointly by Professor Imelda Maher (University College Dublin) and Niamh Dunne (LSE).