Infringement of Competition Law and Invalidity of Contracts

Abstract

This paper is aimed at considering the relationship between EC regulation and national regulations concerning the invalidity of the agreement made in infringement of article 81 and 82 EC Treaty (EC) and to investigate how some national legal systems (in particular: the German, French and Italian ones) have faced and solved the issue of the relationship between infringement of national competition law and the validity of the agreement.

In particular, it focuses on the origins, rationale, ground and application of the nullity provided for by article 81 para 2 EC with regard to agreements between undertakings, and decisions by associations of undertakings, 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.

It will give also an outline of national regulations concerning the invalidity of the prohibited agreements.

It will take in account also the problem of the so called ancillary contracts, namely those contracts made between a party to the prohibited agreement and a third person and whose content corresponds to what has been set out in the prohibited agreement.

In conclusion, we will focus on the issues as to the invalidity of the agreements whereby the abuse of dominant position is carried out. Article 82 EC does not provide anything as to the validity of such agreements or of the abusive contract, but scholars seem to agree that in some cases such agreements can be considered void. This paper attempts to draw a distinction that turns on different kinds of abuse.