INTRODUCTION

Article 101(2) is the only provision of the Treaty on the Functioning of the European Union (TFEU) dealing with the private law consequences of conduct by individuals. Article 101(2) TFEU provides that agreements and decisions infringing Article 101(1) and not being exempted under Article 101(3) TFEU are automatically void. Article 101(1) TFEU prohibits ‘all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market’. The voidness or nullity referred to in Article 101(2) is an autonomous concept of EU law. However, the TFEU does not give any further information on the characteristics or the consequences of the automatic voidness under Article 101(2) TFEU.

The present chapter aims to analyse the case law of the European Court of Justice (‘Court of Justice’) in order to learn more about the nature, the scope of application, the characteristics and the consequences of the Article 101(2) nullity and its impact on the national law of the Member States. Attention will also be paid to the application of Article 101(2) nullity by national courts and to the analysis of the said article in legal scholarship, as well as to the similarities and differences with national concepts of nullity and the concept of non-bindingness that is used in the Unfair Contract Terms Directive (UCTD). No attention will be paid to the so-called theory of provisional validity which applied before the entry into force of Regulation 1/2003, when Article 101(3) was not directly applicable by national courts. Equally, the issue of the impact of the nullity of an agreement or clause for infringement of Article 101(1) TFEU on related contracts will not be addressed.

First, the character of Article 101(2) nullity as an EU private law sanction will be highlighted. Subsequently, the scope of application of Article 101(2) nullity will be investigated. Then the typical characteristics of Article 101(2) nullity will be further examined: its automatic and absolute character and its retroactive effect. After this, attention will be paid to the impact of the nullity of a clause of an agreement or decision on the remainder of that legal act and to the possibility for national courts to modify void agreements in order to render them valid.

It is not a particularly surprising revelation that the citizens of the European Union are often not aware of the rights that they have, nor of the possibilities to enforce these rights. This was a reason for the European Commission to declare 2013 the ‘European Year of Citizens.’ The explicit aim of both the Commission and the European Parliament was – twenty years after the establishment of European Union citizenship under the Maastricht Treaty – to boost the idea of EU citizenship and to develop strategies to better inform European citizens about their rights. It was in this context that the Faculty of Law of Maastricht University decided to initiate a number of events around this ‘Year of Citizens.’ One of these events was devoted to the role of private actors (meaning: citizens, consumers and companies) in normsetting, enforcement and choice of law. It took the form of a conference entitled ‘The Citizen in European Private Law’, organised on 18 October 2013 in cooperation between the Maastricht European Private Law Institute (MEPLI) and the Maastricht Institute for Corporate Law, Governance and Innovation Policies (ICGI). Caroline Cauffman, Mieke Olaerts and Jan Smits were able to take care of the practical organisation thanks to the highly proficient help of Marina Jodogne and Marjo Mullers. Damla Cavusoglu and Lotte Meurkens wrote an elaborate report on the conference that was published in the European Review of Private Law 22 (2014), p. 469-480.

This volume contains most of the contributions that were presented at the conference, together with some new articles. Its structure reflects the wish of the editors to look at citizen empowerment from a thematic perspective and not from the viewpoint of separate fields of law. Thus, part I looks at choice and regulatory competition in both company law and family law, while part II considers norm setting and enforcement in consumer law, commercial law and family law. The introduction to this volume explains the set-up in more detail.

We would like to thank Marina Jodogne, Eve Meurgey, Alina Anapyanova and Christopher Mondschein for essential help in preparing this volume. We also acknowledge the financial support received from the University Fund Limburg/SWOL and from the Faculty of Law of Maastricht University to organise the conference.

The principle of proportionality goes to the root of the law the essence of which is the balancing of competing rights and interests. This insight is not new. The Romans already pictured their goddess of justice, Justitia, as a (blindfolded) woman with a balance. In EU law, proportionality was recognised as a general principle of law in Internationale Handelsgesellschaft.

In the relationship between the principle of proportionality and European contract law two dimensions can be distinguished. Firstly, there is the typical EU law dimension. The principle of proportionality serves as an instrument to delineate the respective powers of the EU and the Member States. As such it is used in Article 5(2) and (4) TEU which state that the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein and that, under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties. To this dimension also belongs the proportionality test used in the control of the compatibility of national legislation with the EU fundamental freedoms. The principle of proportionality evidently also fulfils these functions when legislation in the field of contract law is concerned. Proportionality in the meaning of Article 5(2) and (4) TEU is discussed whenever the EU plans to adopt legislation harmonising elements of contract law or when the desirability of a more general instrument of EU contract law (an EU code of contract law and the like) is discussed. Gysbrechts provides an example of the use of the proportionality test to determine the compatibility of national legislation on contract law with the fundamental freedoms. In this case the Court of Justice held that a Belgian rule on distance contracts, to the extent that it was interpreted as prohibiting the distance seller to require that a consumer provide his payment card number before the expiry of the withdrawal period, went beyond what is necessary to attain the pursued objective of consumer protection and constituted an obstacle to the free movement of goods contrary to Article 35 TFEU (ex-Article 29 EC).