Volume 49 (2012)

Volume 49 (2012) / Issue 2

David Bailey, 'Restrictions of competition by object under Article 101 TFEU' (2012) 49 Common Market Law Review, Issue 2, pp. 559–599

Abstract

This article discusses the concept of restriction of competition by object under Article 101(1) TFEU.  It is argued that this concept is justified by a combination of economic consensus; practical experience; and policy judgment about the likelihood of harm to competition.  The article discusses the criteria that are used by the EU Courts to identify object restrictions: the content of an agreement, its objectives and its surrounding context.  The case law reveals a process of classification in which the EU Courts engage in a judgment as to how much the conduct deviates from the competitive norm.  That judgment is frequently non-controversial, although the article discusses several recent cases in which the existence of an object restriction was strongly contested.  The article analyses the relationship between object restrictions and respectively the analysis of effects on competition, the de minimis doctrine, and Article 101(3) TFEU.  Classification as an object restriction entails a definitive finding as to a restriction of competition which, provided the other elements of Article 101(1) are met, can only escape prohibition by satisfying Article 101(3) TFEU.

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ISSN: 0165-0750
ID: COLA2012020