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Pravo i privreda
2018, vol. 56, iss. 7-9, pp. 136-154
article language: Serbian
document type: unclassified

The notion of agreement in competition law
Univerzitet u Istočnom Sarajevu, Republika Srpska, BiH

Abstract

The notion of restrictive agreement is not defined either in the primary sources of the EU law or in the Law on Protection of Competition of the Republic of Serbia. By that fact, a space for different legal interpretations has been created. The issue is of a great practical importance, since the scope of the rule prohibiting restrictive agreements laid down in Art. 101 TFEU and Art. 10 of the Serbian Competition Law depends on the proper understanding of the term. The author focuses on the first element of the term - the notion of agreement. Both the theory and the EU organs are consent that the notion of agreement in competition law is wider than the notion of contract in civil law. However, the competition law theory lacks an unambiguous definition of the agreement, and the EU Commission and the Court of Justice treat the issue in casuistic way. The aim of this article is to distinguish elements decisive for determining the existence of an agreement. This is done by analysis of the EU Commission's and the EU Court of Justice's decisions. The author detects several competition law derogations from the general rules of civil law. These derogations confer the term 'agreement' in competition law a wider meaning, compared to the meaning of the term 'contract' in civil law. The author however concludes that the basic rules of civil law - the necessity of consensus between parties as to the subject-matter of their agreement and the evident expression of the agreement by words or parties' behavior - are valid without exception in competition law. At the end the author analyses cases solved by the Commission for Protection of Competition of the Republic of Serbia in the light of aforesaid views.

Keywords

restrictive agreement; competition restrictions; offer; acceptance; Commission for Protection of Competition of the Republic of Serbia