6 OVIDIU-HORIA MAICAN
or distortion of competition means that we are dealing with a violation (failure)
101, par 1, TFEU, declaring them incompatible with the common market and
It is established the principle of immediate applicability of Articles 101 and 102
TFEU, provided that imposed bans take effect without the existence of
subordination to the decision of the communitary institutions, national courts
being thus competent to apply those prohibitions.
The Court of First Instance held that art. 101, par 1, TFEU provides for a
fundamental prohibition of anticompetitive agreements by their nature.
This legal provision (considered a matter of public policy) is mandatory for the
undertakings concerned, irrespective of any decision addressed by the
Commission with the same character.
This principle does not apply when the Commission adopts a decision.
The agreements and decisions contrary to Article 101, par 1 TFEU, are
automatically considered void, according to article 101, par 2 TFEU, as long as they
were not exempt under Article 101 par 3 TFEU.3
In this regard, the Court stated that where an agreement prior to the
implementation of Article 101 TFEU, was notified, the general principle of
contractual certainty determines that a court may declare the agreement null only
after Commission made the decision.
Using a per a contrario argument, we conclude that despite its provisional
validity of an agreement for the term of its present full effectiveness, both between
parties and against third parties.
2. Commission referral
Till now, the Commission is the main institution enforcing the competition
Commission must act in case of violations of Articles 101 and 102 TFEU.
There are entitled to submit a complaint in this regard the member states, and
natural or legal persons who claim a legitimate interest.
This provided the opportunity for the Commission to sense the default, which
is a very common situation. Self-appraisals are based on information from the
natural or legal person does not necessarily, not implying any time the existence of
a legitimate interest, often the identity being unacknowledged to the public. The
legitimate interest is excluded, the applicant is more profitable considering that the
information is carried out by the Commission, which will act ex officio. 5
2 See O. Manolache – Op. cit, p. 29.
3 See A. Fuerea - Drept comunitar al afacerilor, Ed. Universul Juridic, Bucureşti, 2003, p. 276.
4 See D. Chalmers, C. Hadjiemmanuil, G. Monti, A. Tomkins – European Union Law. Text and
materials, Ed. Cambridge University Press, Cambridge, 2007, p. 940.
5 See D. Chalmers, C. Hadjiemmanuil, G. Monti, A. Tomkins - Op. cit, p. 941.