(c) share markets or sources of supply; (d) apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; (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) The provisions of 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.

A full discussion of article 81 is not within the scope of this paper, but a few remarks are in point.

Firstly, one should note that the European legislator does not restrict attention to agreements: indeed, the reference to concerted practices allows the EC to possibly deal with collusive situations where firms have not explicitly agreed with each other. This term is deliberately vague enough so as to capture very different situations and institutional arrangements, including cases where firms have not explicitly agreed on, or even discussed, prices, quotas, or market-sharing: most of the discussion on the standard of proof (see below) could be rephrased as a discussion of what elements define a concerted practice.

Secondly, article 81 refers to agreements and practices that either have the effect or the object of distorting competition. This implies that once a cartel or a concerted practice has been identified, it is not necessary to investigate whether it has had any anti-competitive effect. If for instance firms have set up a collusive scheme to fix prices, it is completely irrelevant to EU law whether firms have been successful in their design or not: even if it was proved that firms did not manage to affect prices at all, this would not spare them a finding of infringement, nor would this conceivably have much effect on the fine they should pay (as we shall see below, fines are not calculated in proportion of actual damages to clients and consumers).

Thirdly, article 81(3) admits the possibility that some agreements among competitors may be allowed under EU competition law. However, both the Commission and the Courts have been clear that agreements to fix prices, outputs or markets will very rarely benefit of any exception: they are considered restrictive of competition by their object, and therefore it would be very hard for firms to escape a finding of infringement. In other words, cartels are (almost) per se prohibited. However, very restrictive agreements that contain some