The Concept of 'Agreement' Under Article 101 TFEU: A Question of EU Treaty Interpretation
44 European Law Review 196, 2019
53 Pages Posted: 17 May 2019 Last revised: 5 Jun 2019
Date Written: December 20, 2018
Despite the importance of the “agreement” concept under art.101(1) TFEU, the concept remains underdeveloped by courts and commentators. This article reconstructs the “agreement” concept based on theories of legal interpretation and contract as well as comparative law insights. It argues, based on a theoretical framework for EU Treaty interpretation and a broad, objective conception of an antitrust agreement, that the objectivity and correspondence requirements for contractual agreements have continuing relevance, while the precision requirement should be appropriately relaxed, for antitrust agreements. Drawing on insights from US antitrust jurisprudence, it advances three concrete proposals emerging from the in-depth comparison between antitrust and contractual agreements, namely that the art.101(1) “agreement” concept embraces tacit collusion, encompasses concerted practices and decisions of associations, and is independent of subjective intentions.
Keywords: Agreement, Article 101 TFEU, Treaty Interpretation, Competition Law, Contract Law, Legal Theory, Comparative Law
JEL Classification: K12, K21, L40, L41, L42
Suggested Citation: Suggested Citation