As regards the gentlemen`s agreement, Toshiba argues that, relying on its existence as evidence of potential competition between Japanese and European producers, the General Court established an irrefutable presumption that if two undertakings enter into any agreement, they would automatically be regarded as potential competitors, the therefore relieving the Commission of the resulting burden of proof. Despite its informal nature, the breach of a gentlemen`s agreement could have a negative impact on trade relations if a party decides to break its promise. A gentlemen`s agreement can also be called a “gentleman`s agreement” and can be concluded by a handshake or not. A gentlemen`s agreement is an informal, often un written agreement, or transaction that is only supported by the integrity of the counterparty in order to effectively comply with its terms. Such an agreement is usually concluded informally, orally and is not legally binding. In that regard, it is sufficient for the Commission to show that the undertaking concerned participated in meetings at which anti-competitive agreements were concluded without clearly opposing them, in order to demonstrate sufficiently that the undertaking participated in the cartel. Where participation in those meetings has been demonstrated, it is for that undertaking to provide evidence that its participation in those meetings was without anti-competitive intent by showing that it had informed its competitors that it had participated in those meetings in a different spirit from that of them (Aalborg Portland a. v Commission, C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P, EU:C:2004:6, paragraph 81). Moreover, the General Court held, in paragraph 231 of the judgment under appeal, that the mere existence of the gentlemen`s agreement constituted an argument which seriously calls into question the plausibility of the appellant`s argument that the barriers to entry on the European market were insurmountable.
As the General Court rightly stated in the same recital, it is unlikely that the Japanese and European producers would have concluded a market-sharing agreement if they had not considered themselves at least as potential competitors. In this respect, it should be noted that an agreement, in order to be covered by the prohibition laid down in Article 101(1) TFEU, must have as its object or effect the preventing, restricting or distorting competition in the internal market. According to settled case-law of the Court of Justice since the judgment in LTM (56/65, EU:C:1966:38), the alternative nature of that requirement, as it results from the link `or`, means, first, that the exact subject-matter of the agreement must be examined (judgment in ING Pensii, C-172/14, EU:C:2015:484, paragraph 30). Gentleman`s Agreement terdiri dari 2 kata, yaitu gentleman`s dan agreement In the worst case, a gentlemen`s agreement may be entered into to engage in anti-competitive practices such as price agreements or trade quotas. Since a gentlemen`s agreement is tacit – not bound on paper as a legal and binding treaty – it can be used to create and enforce rules that are illegal. Gentlemen`s agreements have often been concluded in international trade and relations, as well as in most sectors. Gentlemen`s agreements were particularly prevalent at the birth of the industrial age and until the first half of the 1900s, with regulation often falling short of new business practices. It has been found that such agreements are used, inter alia, to control prices and limit competition in the steel, iron, water and tobacco industries. In Rn. 228 of the judgment under appeal, the General Court held that the Commission had rightly held that an agreement such as the gentlemen`s agreement should be regarded as an `intended restriction` as a market-sharing agreement. .