SPORAZUMNA PRAKSA U PRAVU KONKURENCIJE EVROPSKE UNIJE
CONCERTED PRACTICE IN THE EU COMPETITION LAW

Summary/Abstract: The market trade can not function without freedom of entrepreneurship and rights to competition, which enables entrepreneurs to attract buyers and services users by lower prices, technological innovations, modern design, successful marketing promotion, distribution network development, etc… Competitive models in on society reflects from competition of producers, workers and consumers, aiming at making bigger profit, income and pleasures. Nevertheless, enterprises can, instead of playing market game, orient themselves towards making mutual agreement on prices, market segmentation and so on. Article 81 paragraph 1 of the EC Treaty puts sanctions on concerted behavior, both in formal agreements, in forms of a competent body decree of enterprises association, or in the form of concerted practice. Besides theoretical dilemmas, the Court of Justice defined concerted practice as coordinated behavior of enterprises which hasn't led to formal agreement conclusion, but it means that practical cooperation between enterprises substituted for free competition. Therefore, concerted practice by its nature, doesn't comprise all the elements of an agreement, but comes form coordination reflected from uniform behavior of participants-participants on market. This subtle form of agreement is asserted on basis of contact made between participants, as well as on basis of an unusual behavior on market, that couldn't be explained by conditions ruling on the same market. Form the above-mentioned, we can see that simple parallelism could be evaluated as acceptable, because commercial operators can not be sanctioned for " intelligent adaptation" to competition behavior. From the above jurisprudence examples of the Community institutions, one observes that concerted practice could be comprised in agreed prices increase in the same percentage and at the same time (simultaneously) (case "I.C.I.") in market segmentation among competitors (implementation of principle "everybody has its market", as the case of "Suiker Unie" shows), or in refusing to supply the buyer out of trading zone of the authorized distributor, according to agreement between licensee and producer. Concerted practice is asserted on basis of contact between participants aiming at information exchange on business politics (e.g. politics of prices), as well as on basis of an unusual behavior on market, that couldn't be explained by conditions ruling on market of the respective product (e.g. simultaneous price increase in the same percentage). Even participants out of the European Union could take part in concerted practice, but they do not avoid sanctioning in that way, because for common competition law implementation, the relevant thing is localization of an act of anticompetitive behavior. Otherwise, an enterprise is observed separately comparing to legal person bearing registration, which means that several participants within holding and making a whole, could be qualified as one enterprise. Article 81 paragraph 1 of the EC Treaty applies sanctions on those anticompetitive behaviors that affect trade among Member States, i.e. kinder free trade within internal European market. The notion "affectation of trade between Member States" has a function of norm for competency separation between community and national law, as well as a function of norm of material law. Its implementation prevents repeated internal segmentation market and positive effects effacing made by abolition of customs, taxes, equivalent effects measures, merchandise contingents among Member States.

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