Authored By: Subhranil Bhowmik, Postgraduate Diploma in Law (PGDL), University of Law, Bloomsbury Campus, London; B.Sc./LL.B. (Hons.) in Criminal Law, KIIT Law School, Bhubaneswar;,

Edited By: Mr. Varun Kumar, Advocate, Himachal, Punjab & Haryana and Founder at Law Audience.

Abstract

The purpose of this article is to reflect on the evolution of the concept of concerted practices and parallel conduct as per Article 101 TFEU. It takes both a chronological and comparative approach. It follows the journey of EU competition law from the Treaty of Rome to the present day enforcement in the digital markets. It also reveals how the emphasis has shifted from a strict demonstration of contacts and actual market effects to a greater reliance on legal presumptions based on participation, information exchange, and the risk of coordination.

By examining key cases such as Dyestuffs, Suiker Unie, Ahlstrm, Anic, T, Mobile Netherlands, E, Turas, and the 2025 Phones 4U appeal, the article demonstrates the ongoing struggle between the two objectives: effective cartel enforcement and the need to protect lawful parallel behaviour in oligopolistic markets. The comparative views of the United States antitrust law and the Australian competition law serve as a reference for the alternative safeguards, for example, the employment of plus factors and the requirement of a substantial lessening of competition.

It is the article’s contention that while enlarging the doctrine has been a good tool for cartel enforcement against hidden forms of coordination, especially in algorithm, driven markets, the real standards of proof should be raised and more deep economic analysis should be conducted in order to prevent over, enforcement and thus protect innovation, legal certainty, and the communicating firms’ freedom.

Keywords

Concerted practices, parallel behavior, conscious parallelism, Article 101 TFEU, oligopoly, tacit collusion, information exchange, Dyestuffs case, Anic presumption, algorithmic collusion, Phones 4U case

Hypothesis

The doctrine of concerted practices under Article 101 TFEU has experienced a significant change, from being mainly focused on requiring firm evidence of direct contact and market effects, to a situation where more general presumptions are made based on participation, information exchanges, and coordination risks. On the one hand, this allows the authorities to crack down on secret collusion more effectively; on the other hand, it increases the chance of treating normal parallel conduct as if it were anti, competitive.

Research Questions

1. How has the understanding of “concerted practices” in Article 101 TFEU changed with the releasing of ECJ/CJEU case law over time?
2. What principal evidentiary and thematic differences between concerted practices and parallel behavior have been clarified along the way?

• What are US and Australian practices like in comparison, and what guidance on EUnforcement can be derived from these countries?

1. What insights do recent litigation (such as Phones 4U 2025) and investigations (e.g. algorithmic pricing probes 20252026) provide on the necessity of doctrinal changes to the emerging risks of coordination through technology?

Objective

Displaying a thorough chronological account of the evolution of concerted practices and parallel behavior, explaining doctrinal changes, proof standards, and the delineation between prohibited coordination and legitimate market adaptation, as well as including the aspect of modern, day digital enforcement challenges.

Scope of the Paper

This article examines the issue of horizontal coordination under Article 101 TFEU from 1957 to early 2026, while also making comparative references to the US Sherman Act 1 and Australia’s Competition and Consumer Act 2010 (post, 2017). It is dealing with matters such as oligopolistic dynamics, evidentiary refinements, information exchanges, and algorithmic problems, but not discussing vertical restraints and dominance except if they are relevant.

Limitations

We base our work on publicly available case law, decisions, and literature; therefore, we do not consider confidential or unresolved investigations. In addition, technological changes (such as current investigations into algorithms) are considered only to the extent of their preliminary nature. The differences between jurisdictions suffice to preclude perfect comparability, and testing with empirical economic methods of tacit collusion lies beyond the doctrinal scope.

Introduction

Competition law is the foundation of the European Union’s single market (Ibáñez Colomo, 2016). It aims at ensuring effective competition by prohibiting any arrangements that distort market outcomes and thus, leading to the detriment of consumers, innovation, and economic efficiency (Whish and Bailey, 2021). Article 101(1) TFEU states that activities such as “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” are prohibited (European Union, 2012). This article goes further than mere contracts to include informal coordination thus undertakings could be held responsible for any behavior, which might be subtle or tacit, if that behavior is aimed at evading the liability by indirect or tacit arrangements (Jones, Sufrin and Dunne, 2023).

Concerted practices are a set of categories housing the kind of coordination which knowingly is a practical substitution of the cooperation for the competition risks, usually through direct or indirect contacts that lead to reduction of strategic uncertainty without having a binding agreement (Imperial Chemical Industries Ltd v Commission, 1972). On the other hand, parallel behavior which is often exhibited as conscious parallelism in oligopolistic markets results from independent reactions to the same market conditions, transparency, or economic interdependence and it is lawful, in general, in the absence of an agreement to collude (A. Ahlström Osakeyhtiö and others v Commission, 1993).

Literature Review

Scholarly discussion about concerted practices can be found in the pre-Treaty influences especially in France’s 1953 decree (Decree No. 53-704) that banned “actions concertées” (Goyder and Albors-Llorens, 2009) and this was one of the factors that led to “concerted practices” being included in the Treaty of Rome (Monti, 2007). The early literature of the EU was inspired by the US antitrust law when it focused on the extension of prohibition of formal agreements to informal collusion (Kovacic, 2011), apart from which it also used and adapted the concept of conscious parallelism in line with the European market integration goals (Geradin et al., 2012).

Major citation works illustrate the need of the independence test: the companies have to decide their market policy without any external influence so that there can be no direct or indirect contact which reveals one party’s intentions or influences the other’s conduct (definition by Suiker Unie) (Coöperatieve Vereniging “Suiker Unie” UA and others v Commission, 1975). In the US, scholars emphasize the existence of “plus factors” to go beyond the mere parallel behavior (Areeda and Hovenkamp, 2017) while in Australia, post-2017 CCA amendments (Competition and Consumer Amendment (Competition Policy Review) Act 2017), analyses raise the concern that the case law will catch innocent interdependence in oligopolies (Beaton-Wells, 2017).

On the one hand, a body of literature is critical of the application of the doctrine in digital markets, in particular, where price algorithms may serve as a medium of tacit collusion without direct communication (Ezrachi and Stucke, 2016). On the other hand, such situations are a perfect illustration of the enforcement puzzle (Mehra, 2016). In other words, a situation where the claimant will find it difficult to establish the causality of the various factors resulting in AI-driven coordination (Gal, 2019). There is a call for the updating of presumptions based on economic modeling and guidelines to make the distinction between explicit facilitation and autonomous outcomes clearer through the provision of new tools for the enforcement authorities and courts (Harrington, 2018).

Generally speaking, the various pieces of the literature point to the fact that the discussion started off with doctrinal work and has now moved on to dealing with the challenges brought about by technology (Schwalbe, 2018). The latter scene is dominated by the concern for the proper balancing of deterrence and proportionality both of which are sides of the same coin (Petit, 2017).

Chronological Evolution of Concerted Practices and Parallel Behavior

6. Before 1957, European competition rules did not exist yet, so competition law was mostly a matter of national laws (Goyder and Albors-Llorens, 2009). For instance, a 1953 French law prohibited concerted actions (Decree No. 53-704) that is, informal coordination between companies (Jones, Sufrin and Dunne, 2023). Later, the Treaty of Rome, which was signed on 25 March 1957 and came into force on 1 January 1958, added Article 85 EEC (now Article 101 TFEU) (European Union, 1957). This clause forbade not only formal agreements but also concerted practices to regulate informal cooperation between companies.
7. In the case of Costen and Grundig v Commission the Court, in this case, decided that competition law covers practices that hinder competition either directly or indirectly (Établissements Consten S.à.R.L. and Grundig-Verkaufs-GmbH v Commission, 1966). Even though the case was mainly about vertical agreements, it contributed to the clarification of the fundamental distinction between different types of coordination under competition law.
8. In the year , 1972 the Court in ICI v Commission (Dyestuffs case) considered a concerted practice from the situation of parallel price increases that were hardly explainable as independent or spontaneous behaviour (Imperial Chemical Industries Ltd. v Commission, 1972). The Court pointed out that parallel conduct alone cannot be used as evidence of a concerted practice. There should also be either communication between the firms or market circumstances that firms are not independent when they act (Whish and Bailey, 2021). This case established a rather high degree of rigor for proof.
9. In 1975, the Court in Suiker Unie v Commission explained that each company must decide its business policy on its own (Coöperatieve Vereniging “Suiker Unie” UA and others v Commission, 1975). Companies are allowed to react intelligently to competitors’ behaviour in the market, but any direct or indirect contact that shares plans or influences future conduct is not allowed if it limits competition.
10. Later, in Ahlström Osakeyhtiö v Commission (1988), the Court clarified that having the same or similar prices is not illegal by itself (A. Ahlström Osakeyhtiö and others v Commission, 1988). If parallel pricing can be explained by market conditions or the structure of an oligopolistic market, it is lawful, and competition authorities must show positive evidence of coordination, not just parallel behaviour.
11. In 1999, the Court in Commission v Anic Partecipazioni held that when a company takes part in coordination with competitors, it is presumed that this participation influenced its market behaviour (Commission v Anic Partecipazioni SpA, 1999). This presumption can be rebutted, and actual parallel conduct is not strictly required to establish an infringement. Finally, in T-Mobile Netherlands v Commission (2009), the Court ruled that even a single contact or exchange of information between competitors can amount to a violation if it reduces uncertainty in the market (T-Mobile Netherlands BV and others v Raad van bestuur van de Nederlandse Mededingingsautoriteit, 2009). For conduct that is anti-competitive by its nature, authorities do not need to prove actual effects on competition.
12. During the 2010s, competition law has gradually focused more explicitly on the digital and technology, related business coordination (Ezrachi and Stucke, 2016). The Court in E, Turas (2016) looked at the coordination made through online platforms and held that companies should not be automatically held responsible for any anti, competitive behavior if they were only passively involved (“Eturas” UAB and others v Lietuvos Respublikos konkurencijos taryba, 2016). The company is presumed innocent unless there is clear evidence that the company knew about and consented to the coordinated practice.
13. Australia went on to change its Competition and Consumer Act after 2017 so that it was clear that concerted practices are prohibited (Competition and Consumer Amendment (Competition Policy Review) Act 2017). The ACCC reminded that concerted practices should be explained as different from independent parallel behaviour and it must be proven that they resulted in a substantial lessening of competition (ACCC, 2018).
14. EU and UK legislation changes from 2024 to 2026 have reduced the scope of the concerted practice definition even further. In the Phones 4U appeal decided in 2025, the Court of Appeal held that vague or general exchanges of information, such as informal lunch conversations, are not enough to establish a concerted practice unless they clearly reduce market uncertainty or show agreement or acceptance of coordination (Phones 4U Ltd (In Liquidation) v EE Ltd and others, 2025). Moreover, the Court pointed out that it is not sufficient for a concerted practice to be inferred from the parties passively or neutrally responding to each other, unless there can be demonstrated the presence of an agreement or coordinated behaviour. On another note, it was confirmed that two EU investigations, which were ongoing in July 2025, are looking into algorithmic pricing systems as potential tools for collusion (European Commission, 2025). Through these investigations, it has been made clear that the authorities are prepared to intervene against coordination facilitated by AI or pricing software even in cases where there is no obvious or direct agreement, thus including hub, and, turn arrangements (Gal, 2019).
15. Nevertheless, the mere occurrence of parallel behaviour does not constitute a breach of law as long as the respective firms are acting independently (Ibáñez Colomo, 2016). In the United States, this is tested by employing plus factors to demonstrate that the companies were not acting on their own accord (Areeda and Hovenkamp, 2017), whereas in Australia, a firm can only be held liable if its conduct leads to a substantial lessening of competition (Beaton-Wells, 2017).

Doctrinal Expansion and Its Enforcement Rationale

The evolution of the concept of concerted practices under Article 101 TFEU reveals a shift from a rigid requirement for proof of actual market effects to a more flexible system of legal presumptions (Ibáñez Colomo, 2016). In the earlier cases, for instance, Dyestuffs (Imperial Chemical Industries Ltd. v Commission, 1972) and Ahlström (A. Ahlström Osakeyhtiö and others v Commission, 1993), competition authorities were required to demonstrate clear market effects and present additional evidence that the companies were not acting independently. Such a cautious approach mirrored the Court’s apprehension over mischaracterising legitimate parallel behaviour as illegal coordination (Whish and Bailey, 2021).

Subsequent rulings, most notably Anic Partecipazioni (Commission v Anic Partecipazioni SpA, 1999) and T-Mobile Netherlands (T-Mobile Netherlands BV and others v Raad van bestuur van de Nederlandse Mededingingsautoriteit, 2009), have lowered the standard of proof. The Court acknowledged that merely participating in coordination or exchanging sensitive information might be sufficient to establish a presumption that the conduct influenced market behaviour (T-Mobile Netherlands BV and others v Raad van bestuur van de Nederlandse Mededingingsautoriteit, 2009). Moreover, this modification was motivated by the practical problems that come with enforcement since cartels and informal coordination are generally secret, and direct evidence of agreement or effects is usually difficult to obtain, especially in oligopolistic markets where firms are highly interdependent (Jones, Sufrin and Dunne, 2023).

Tension Between Presumptions and Lawful Parallelism

On the other hand, using legal presumptions more broadly certainly makes enforcement easier but at the same time exposes the risk of wrongfully punishing the lawful conduct (Whish and Bailey, 2021). In markets of oligopoly, the parallel behaviour is frequently a natural result of firms rationally reacting to each other, the market transparency being high, and competitors knowing each other’s incentives (Jones, Sufrin and Dunne, 2023). This kind of behaviour, recognised as conscious parallelism, is not illegal if there is no coordination (A. Ahlström Osakeyhtiö and others v Commission, 1993).

The most important concern is that application of these presumptions on too large a scale might blur the distinction between the illegal concerted practices on the one hand and lawfully independent behaviour on the other (Ibáñez Colomo, 2016). This issue is quite apparent when the authorities base their decisions mainly on indirect evidence such as information exchanges or market outcomes without duly considering alternative market, structure, based explanations (Geradin, Layne-Farrar and Petit, 2012).

The comparative legal systems can be used here to shed light on the possible danger. For example, US antitrust law mandates that “plus factors” or additional evidence be present alongside the parallel behavior to demonstrate that the firms were not acting independently (Areeda and Hovenkamp, 2017). In fact, Australian law permits liability to be imposed only if the conduct results in a substantial lessening of competition, especially after 2017 reforms (Beaton-Wells, 2017). These protections assist in avoiding penalties for mere interdependence and also indicate the necessity for thorough economic analysis (Monti, 2007).

Digital Markets and Algorithmic Coordination Risks

Digitalisation has resulted in the assessment of concerted practices becoming more complicated (Ezrachi and Stucke, 2016). Through algorithmic pricing, companies are able to gather, analyse, and utilise large amounts of data to determine prices automatically and at a very fast pace (Mehra, 2016). This can result in a rapid price alignment that is very similar to collusion which is traditionally achieved through human communication, even if there is no direct contact or explicit agreement between firms (Gal, 2019).

EU investigations during 2025 and 2026 indicate a growing concern that shared software providers, pricing tools, or platform-based systems might be used to facilitate coordination through hub-and-spoke arrangements (European Commission, 2025). Competition authorities are also challenged to distinguish deliberate facilitation of coordination from independent algorithmic responses to normal market signals (Schwalbe, 2018).

The Court’s cautious approach in this area is reflected in the E-Turas case (“Eturas” UAB and others v Lietuvos Respublikos konkurencijos taryba, 2016). The Court denied the notion of automatic guilty for companies that merely participate passively or unknowingly in digital systems. This ruling shows that knowledge and acceptance continue to be the main elements of a concerted practice,

Judicial Reaffirmation of Evideniary Discipline

Recent case law has exhibited a tendency to pull back somewhat from very stringent enforcement (Whish and Bailey, 2021). One of the key cases is the Phones 4U appeal decided in 2025 (Phones 4U Ltd (In Liquidation) v EE Ltd and others, 2025) that reaffirmed the requirement of strong evidence (Jones, Sufrin and Dunne, 2023). The Court thus clarified that vague, informal, or general exchanges of information, such as casual chats without sharing of strategic details, cannot serve as evidence of a concerted practice unless they significantly reduce market uncertainty or reveal an agreement on future actions (Phones 4U Ltd (In Liquidation) v EE Ltd and others, 2025).

The ruling also states that legal presumptions are subject to be overturned and advocates the presumption of innocence (Ibáñez Colomo, 2016). According to the Court, mere passive reactions or parallel behaviour are insufficient grounds for the finding of coordination, and therefore, the Court protects legitimate competitive conduct from being sanctioned wrongly (Phones 4U Ltd (In Liquidation) v EE Ltd and others, 2025).

Balancing Deterrence, Innovation, and Legal Certainty

The evolving attitude towards concerted practices reflects a continued effort to go on strong enforcement while ensuring legal certainty (Jones, Sufrin and Dunne, 2023). Excessive reliance on legal presumptions may hinder lawful market behaviour and cause delay in innovation, especially in rapidly developing digital sectors (OECD, 2023). At the same time, if enforcement is too weak, tacit coordination may be allowed to continue resulting in higher prices and harm to consumers (Ezrachi and Stucke, 2016).

Continuation of the doctrine in the future will probably be influenced by a greater role of economic analysis, stronger proof of causation, and more thorough guidance for certain industries, especially those related to algorithm-based pricing and data-driven coordination (Schwalbe, 2018). More international standardization, learning from the experiences of the United States and Australia, might also facilitate regulators in effectively dealing with new technological risks (UNCTAD, 2024).

Finally, the effectiveness of enforcement under Article 101 hinges not only on the broadness of its reach but also on the careful and proportionate manner in which it is applied (Whish and Bailey, 2021).

Conclusion

The review put forth very strong support for the claim that Article 101 TFEU has changed from demanding hard evidence to permitting wider presumptions, thus facilitating enforcement but also jeopardizing the misclassification of lawful parallel behaviour as illegal. In the very beginning, cases such as Dyestuffs and Ahlstrm dealt with strong evidences of contacts and market effects, therefore, the agreements between competitors that had the effect of limiting competition were only considered unlawful if there was evidence of coordination between the parties.But decisions like Anic Partecipazioni and T, Mobile Netherlands have changed this, in particular by allowing for presumptions based on participation and information exchanges, thus, giving more power to the authorities to fight hidden collusion especially in oligopolistic and digital markets. By the way, the ruling in Phones 4U is a very good point in the line of decisions that indicate setting very root level evidentiary bar to distinguish independently run or algorithm come parallel behaviour (lawful) from what kind of behaviour can be considered as unlawful (collusive/parallel/interactive)

Besides that, the comparative perspective of the US and Australia highlights how important it is to base the analyses of such matters on economic analysis and therefore, requires the presence of certain factors, such as plus factors and the substantial lessening of competition test.To sum up, the developments confirm the assumption: the doctrine is now more capable to unmask and deter anti, competitive coordination, however, its success relies on the correct and moderate usage of its tools to strike the proper balance between enforcement and protection of legitimate market behaviour, innovation, and legal certainty.

Recommendations

1. EU competition authorities and courts should keep demanding solid proof of communication, knowledge, and acceptance of coordination from the parties. Legal presumptions should always be rebuttable and not used as a substitute for detailed factual and economic analysis, especially in oligopolistic markets.
2. Economic evidence must be given more weight to help differentiate between illegal concerted practices and legal conscious parallelism. The role that market structure, demand elasticity, transparency, and strategic incentives play should be thoroughly considered before coordination is deduced.
3. Revised guidelines should clarify cases when information exchanges really lessen strategic uncertainty and when they simply represent normal market transparency. This would provide businesses with higher legal certainty and would lessen the unfounded fears of legitimate cooperation.
4. In digital and algorithm, driven markets, the focus of liability should be on whether there is a proof of intentional design, facilitation, or knowing participation in coordination. Authorities should not bluff collusion just because algorithmic pricing coincides without any evidence of control, intent, or acceptance.
5. It is time for the EU to learn from the US and Australian experiences, for example, the plus factors test and the substantial lessening of competition requirement, to bring its own framework to a higher level and not widen liability excessively.

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