The Distinction Between An “Agreement” Within the Meaning of Article 81(1) of the EC Treaty and Unilateral Conduct

"Article 81(1) of the EC Treaty prohibits agreements between undertakings, decisions of associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market, whereas Article 82 EC prohibits any abuse of a dominant position within the common market or in a substantial part thereof by undertakings insofar as such abuse may affect trade between Member States. EC competition law thus prohibits certain kinds of agreements, but does not define the term “agreement”.

The question of the exact delimitation of the concept of an “agreement” within the meaning of Article 81(1) EC, and the distinction between such an agreement and unilateral conduct, has arisen particularly in cases concerning restrictions of parallel imports by undertakings."