The Concept of 'Agreement' Under Article 101 TFEU: A Question of EU Treaty Interpretation

53 Pages Posted: 17 May 2019 Last revised: 5 Jun 2019

See all articles by Kelvin Hiu Fai Kwok

Kelvin Hiu Fai Kwok

The University of Hong Kong - Faculty of Law

Date Written: December 20, 2018

Abstract

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

Kwok, Kelvin Hiu Fai, The Concept of 'Agreement' Under Article 101 TFEU: A Question of EU Treaty Interpretation (December 20, 2018). 44 European Law Review 196, 2019, University of Hong Kong Faculty of Law Research Paper No. 2019/028, Available at SSRN: https://ssrn.com/abstract=3364499

Kelvin Hiu Fai Kwok (Contact Author)

The University of Hong Kong - Faculty of Law ( email )

Pokfulam Road
Hong Kong, Hong Kong
China

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