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The sanction of nullity in the context of private enforcement of EU competition law – characteristics, application and consequences of Article 101(2) TFEU

Opinnäytetyöt, Gradut ja muut tutkielmat

The main purpose of this thesis is to identify and discuss the threats that the application of Article 101(2) TFEU by national courts poses to a uniform and effective enforcement of EU competition rules. Besides demonstrating the problems, some suggestions for a more coherent application of the sanction are presented. A great part of the difficulties relating to nullity under Article 101(2) stem from the presumption of national procedural autonomy. Accordingly, it is for the national courts to determine the legal consequences of the sanction on the basis of their national private law in observance of the principles of effectiveness and equivalence. It is discovered that national courts have applied the nullity sanction in a divergent fashion, and, consequently, a need to harmonize the effects of Article 101(2) could be said to exist. Due to the highly casuistic nature of the problems however, drafting a legal instrument that lays down the rules on different aspects of the nullity would be very difficult. Still, a soft law instrument on this issue could possibly initiate a trend toward a more consistent legal treatment of Article 101(2). When given the opportunity, the CJEU could also clarify some of the uncertainties relating to the scope of the nullity sanction. Addressing these issues could also be useful for the ongoing efforts aimed at the elaboration of a common European contract law. (muokannut Edilex-toimitus)

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