Overview

Antitrust, to be effective, must capture not only legally enforceable contracts but also informal understandings. Article 81 EC accordingly applies to both agreements and ‘concerted practices’ (CPs): a CP is normally prohibited if it both is anti-competitive and may affect trade between member states. Similarly section 43 of the UK Restrictive Trade Practices Act 1976, now repealed, defined ‘agreement’ to include ‘any agreement or arrangement, whether or not it is or is intended to be enforceable… by legal proceedings’. EC legislation does not define ‘concerted practice’: as with ‘agreement’, the meaning of the phrase has been left to emerge from the case-law. The advantage and the disadvantages of this approach were noted in chapter 4: on the one hand, it allows a term's meaning to develop to fit the cases; on the other, definition through cases is a haphazard process swayed by specific facts and, as the diversity of the cases increases, the term's meaning can come to lack conceptual unity. Certainly the meaning of ‘concerted practice’ does not emerge clearly from the judgments and decisions. The standard definition is from the judgment in Dyestuffs: