ABSTRACT
Section 2(4) provides that ‘[a]ny agreement or decision which is prohibited by subsection (1) is void’. The European Court has confirmed that it is only those elements of an agreement that are prohibited under Art 81 that are void.146 Ultimately, it is a matter of the general law of contract applicable in England and Wales, Scotland and Northern Ireland as to whether or not the offending provisions are severable from the agreement and the remaining agreement is enforceable. In recent years there has been a noticeable increase in case law, before the English courts, involving Art 81 and the question of remedies, particularly in relation to unjust enrichment arising out of void and illegal contracts.147 The Court has considered, to an extent, in Courage v Crehan, whether Community law requires appropriate remedies for breach of competition law to be made available by the courts; this issue is discussed more fully in Chapter 2. The development of remedies under Community law is important for the 1998 Act, given that the s 60 consistency requirement also applies to decisions as to ‘the civil liability of an undertaking for harm caused by its infringement of Community law’.148
