Agreement and Unilateral Conduct

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A unilateral conduct is the one taken from one of the parties, one-sided and having relation to only one of them. Thus, if a decision by an undertaking constitutes unilateral conduct on its part, that decision escapes the prohibition in Art. 101 para. 1 TFEU. Nonetheless in ECJ's case Bayer AG vs Commision, the meaning of agreementbecomes more wide when it is stated that  unilateral conduct by an undertaking, adopted in the context of its contractual relations with its commercial partners, may in reality form the basis of an agreement between undertakings, within the meaning of Art. 101 para. 1 TFEU if the acquiescence of those partners, express or implied, with the attitude adopted by the undertaking is established. Although not every unilateral measure form an undertaking can be considered as an agreement under this article, only those which receive at least the tacit acquiescence of the other part. The Court has made a distinction in, when stating that a call by a motor vehicle manufacturer to its authorized dealers did not constitute a unilateral act which fell outside the scope of Art. 85 para. 1 (now Art. 101 para. 1 TFEU) of the Treaty but was an agreement within the meaning of that provision if it formed part of a set of continuous business relations governed by a general agreement drawn up in advance. 

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