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.
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
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,
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
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.