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.

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