Considerații cu privire la limitele libertății contractuale în dreptul public, impuse de integrarea în Uniunea Europeană

Abstract

Freedom of contract or contractualism is the idea that individuals should be free to bargain among themselves the terms of their own contracts, without government interference. Anything more than minimal regulations and taxes may be seen as infringements. It is the underpinning of the theory of laissez-faire economics. In the sphere of the private law, the agreement constitutes the traditional mean which generates relations among different categories of subjects. Adjoining to all these, the public law uses the institutions stipulated by a contract as special means in achieving the purposes of public interest. Freedom of public contracts is limited today by the competition law. Today competition law pervades every aspect of doing business in Europe. As a consequence, each business that is active in Europe is continually faced with the challenge of conforming its commercial objectives and practices to the EC competition rules. Abuse of a dominant position is prohibited by Article 82 EC Treaty. The frequent adoption of narrow market definitions and low thresholds for establishing dominance in Europe makes compliance with Article 82 a concern for many companies that would not qualify as traditional “monopolists”.