A. Introduction

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Art. 101 para. 1 applies to agreements concluded between two or more undertakings. It is not applicable however, where agreements are concluded between companies forming part of a single economic entity or to genuine agency agreements.

B. Horizontal and Vertical Agreements

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In Consten and Grundig, the ECJ held that Art. 81 para. 1 (now Art. 101 para. 1 TFEU) refers in a general way to all agreements which distort competition within the Common Market and does not lay down any distinction between those agreements based on whether they are made between competitors operating at the same level in the economic process (horizontal agreements), or between non-competing persons operating at different levels (vertical agreements). In principle, no distinction can be made where the Treaty does not make any distinction.   

C. Form of the Agreement

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The term "agreement" catches agreements whether or not they amount to a contract under national rules, whether or not they are intended to be legally binding and whether they are in writing or oral. It covers so-called “gentlemen’s’ agreements”, standard conditions of sale, trade association rules (which are treated as an agreement between the members to abide by the rules) and agreements entered into to settle disputes, such as trademark delimitation agreements. An agreement exists once the parties agree on “good neighbour rules” or “establish practice and ethics” or “certain rules of the game which it is in the interests of all of us to follow”. Where there is a concurrence of wills, the agreement's form is unimportant so long as it constitutes the faithful expression of the parties’ intention.

D. Duration of the Agreement

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It does not matter that no sanction is provided for breach of the agreement. Further, an agreement which has been terminated may be caught by Art. 101 para. 1 in respect of the period after termination, when the effects of the agreement continue to be felt.

E. Agreement and Unilateral Conduct 

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The term “agreement” catches terms and conditions even if imposed by one party on another. If the terms are accepted the fact that one of the parties was unwilling to accept them does not prevent the agreement from being formed. InBMW Belgiuman agreement was found to have been concluded which incorporated export bans imposed on reluctant BMW dealers.

F. Intracorporate Agreements 

I. Definition

II. Impact of the Viho Europe Case

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