The Impact of Voidness for Infringement of Article 101 Tfeu on Related Contracts

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Series Details Volume 8, Number 1, Pages 95-122
Publication Date January 2012
ISSN 1744-1056
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"A cartel agreement is often followed by a number of contracts concluded between one of the cartelists and a third party to realise the cartel’s profits. In the case of a “traditional” price-fixing cartel, these are the agreements between each of the cartelists and their purchasers, concluded at cartelised prices. In the case of bid-rigging, it is the contract concluded between the procurer and the “winning” bid-rigger. Cartel agreements are considered to be the most harmful competition law infringements because they increase prices and decrease innovation and choice. Article 101 TFEU therefore declares these pernicious agreements void if they have a significant effect on competition within the internal market and on trade between the Member States, and do not fall under any of the exemptions of Article 101(3) TFEU. In addition, the Commission and the national competition authorities may impose severe fines on the cartelists, even when they have not applied the cartelised prices or conditions. The actual harmful effect of a price-fixing cartel is realised, however, when the cartelised goods or services are sold at cartelised prices or conditions. This raises the question whether, in addition to the cartel agreement, the agreements with third parties concluded at cartelised prices or conditions are not, or should not be, entirely or partially (insofar as the contract is affected by the cartel agreement) void, voidable or otherwise not fully binding."

"As it is not possible to investigate the legal systems of all EU Member States within the confines of this study, the study is limited to the Western European legal systems, which are representative of the main European legal families: Belgium and France represent the Romanist legal families; Germany represents the Germanic legal families; the Netherlands represent a modern legal system which combines elements from the Romanist and Germanic legal tradition; and England represents the common law."
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