Agreements', 'decisions' and 'concerted practices': Key concepts in the analysis of anticompetitive agreements

• Author: Cristina Cucu
• Position: PhD candidate, Faculty of Law, 'Nicolae Titulescu' University of Bucharest
• Pages: 24-39

LESIJ NO. XX, VOL. 1/2013

“AGREEMENTS”, “DECISIONS” AND “CONCERTED

PRACTICES”: KEY CONCEPTS IN THE ANALYSIS OF

ANTICOMPETITIVE AGREEMENTS

Cristina CUCU

Abstract

In their economic activity, undertakings conclude many agreements between them. But agreements

between undertakings which can distort the competition -anticompetitive agreements- are prohibited. The

Romanian and EU law prohibit “all agreements between undertakings, decisions by associations of

undertakings and concerted practices which have as their object or effect the prevention, restriction or

distortion of competition”. However, the terms ”agreements”, ”decisions” or ”concerted practices” are

nowhere defined in the EU Treaties or in the Romanian law. These terms are key concepts in the analysis of

anticompetitive agreements which can distort the competition. In the lack of a legal definition, these

concepts have generated a complex body of jurisprudence, which has to be identified. The analysis of these

key concepts necessarily entails the conceptual delimitation of the notions. On this purpose, the relevant

legal provisions will be identified in the Romanian and EU law, as well as the decisions of the European

Court of Justice in this matter. The present paper intends to present the conceptual evolution of the

analysed notions, paying special attention to concerted practices and to parallel behaviour in price fixing

on the market.

Keywords: anticompetitive agreements, agreements between undertakings, decisions by

associations of undertakings, concerted practices, parallel behaviour.

Introduction

Theăp urposeă ofă thisă paperă isă theă analysisăof ă theănotionsă ” agreements”,ă ”decisions” and

”concertedă practices”, which represent key concepts in the analysis of the anti-competitive

agreements which can distort the competition. The desire to maintain themselves on a particular

market, at a higher level of profitabilit y or at a reasonable level at least, can lead the

undertakings to adopt an anticompetitive behaviour more easily. This may result from the

existence of anticompetitive agreements and concerted practices, especiall y in light of recent

economic crises. Agreements between undertakings which can distort the competition -

anticompetitive agreements- are prohibited. The analysis of any anticompetitive practice begin s

necessarily with the identification of the conduct of undertaking and the verification whether or

notă theă conductă ată handă representsă ană “anticompetitiveă agreement”ă toă whichă theă competitionă

rules address.

TheăRomaniană an dă EUă lawă prohibită allă ”agreementsă betweenă undertakings”,ă ”decisionsă

byăassociationsă ofăundertakings”ă andă”concertedă practice”ăwhichă haveăasă theirăobjectă orăeffectă

the prevention, restriction or distortion of competition. The study of these notions is important

because they are key concept in the analysis of anticompetitive agreements which restrict natur al

competition. Also, these notions are nowhere def ined in the EU Treaties or in the Romanian

law; as such, the concepts has generated a co mplex body of jurisprudence, which has to be

identified.

 PhD candidate, Faculty of Law,ă “Nicolaeă Titulescu”ă University of Bucharest (e-mail:

cristinaeremia@yahoo.com).

Cristina Cucu 25

LESIJ NO. XX, VOL. 1/2013

With the purpose of determining the meaning of anticompetitive agreements, we will

analyseă theă specială significanceă ofă eachă ofă theseă threeă notions,ă ”agreements”,ă ”decisionsă b yă

associations of undertakings” andă”concertedă p ractices”ăină theă contextă ofă competitionă law,ă we

will identify and analyse the main normative dispositions with regard to these aspects, both at

national and European levels, and we will present many jurisprudential solutions of the

European Law Court, from which are resulted the criteria that have to be taken into

consideration for the identification of anticompetitive agreements.

In comparison with other already existent specialty literatur e on competition law, the

present paper intends to present the conceptual evolution of the analysed notions, paying special

attention to concerted practices and to parallel behaviour in price fixing on the market.

Content

1. The notion of “anticompetitive agreements”.

The existence o f a competitive and undistorted milieu is a fundamental condition for the

existence of a functional market economy. Thus, it is necessary to protect the market against acts

or facts that could lead to the prevention, restriction or distortion of competition. Among these,

the anticompetitive practices of undertakings are especially harmful, irrespective of th e way in

which they take place: anticompetitive agreements or the abuse of dominant position on a

certain market.

There are two main t ypes of anticompetitive practices: the anticompetitive agreements

concluded between two or more undertakings in order to coordinate their market behaviour and

theă undertaking’să abuseă ofă dominantă positionă onă aă certaină relevantă market.ă Theă objectă ofă theă

present an alysis is represen ted by the anticompetitive agreements within the activity of

undertakings as th e main form of anticompetitive practice. In their economic activities,

undertakings conclude naturally a large nu mber of agreements between them, without becoming

illicit in th is manner. However, those antico mpetitive agreements within the activit y of

undertakings whose object or effect is the prevention, restriction or distortion of competition are

prohibited.ă Ină theseă circumstances,ă ită isă necessaryă toă analyzeă theă notionă ofă “anticompetitive

agreement”ă ină orderă toă determineă whetheră oră notă theă agreementsă concludedă ină theă activityă ofă

undertakings become illicit from a competitive point of view. In order to b ecome competitively

illicit, the agreements between undertakings must regard a coor dinationăofă theă undertaking’să

behaviour on the market, to the detriment of free competition.

In the European Union Law, The Treaty on the Functionin g of the European Union (EU

Treaties/TFEU)1, contains the primary legal regulation with regard to competition, which applies

toă undertakingsă andă associationsă ofă undertakings.ă Accordingă toă articleă 101ă TFEU,ă “Theă

following shall be prohibited as incompatible with the internal market: all agreements between

undertakings, decisions by associations of undertakings and concerted practices wh ich may

affect trade between Member States and which have as their object or effect the prevention,

restrictionăorădistortionăofăcompetitionăwithinătheăinternalămarket”.

Similarly, in the Romanian Law, the Competition Law no. 21/19962 p rohibitsă ”any

agreements between undertakings or associations of undertakings, any decisions by associations

of u ndertakings and any concerted practices, which have as their object or may have as their

effect the restriction, prevention or distortion of competition on the Romanian market or on a

partăofăit”.

1 Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of t he

European Union, Official Journal of the European Union C 83/1, 30.3.2010. Brevitas causa, throughout the

present study, it will be indicate by the abbreviation TFEU.

2 Official Gazette no. 88/30.04.1996.