Chillin'Competition

I had forgotten this one. In response to the question what is a “restriction by object“, I got the following answer:

There is a restriction by object when, “following an individual and specific examination of the content and objective of that contractual clause and the legal and economic context of which it forms a part, it is apparent that, having regard to the properties of the products at issue, that clause is not objectively justified“.

Where things are a little tricky here is that this definition is not the product of this student’s imagination. Rather, this definition is a straightforward restatement of §47 of the ECJ’s ruling in Pierre Fabre Dermo-Cosmétique SAS.

I know Alfonso and Antoine Winckler have expressed mixed – or even hard – feelings about the judgment. But personally, I had not realised until now how confused this ruling was. In a single paragraph, the Court manages to conflate the notion of a “restriction by object” with that of a “restriction by effect” … together with the issue of “objective justification” which is normally understood to belong to Article 101(3) analysis. And in so doing, it rejuvenates the debate on whether the rule of reason system inhabits Article 101(1) TFEU.

In this post, I would like to try a somewhat improbable analogy. In the history of EU competition law, the ECJ’s trajectory is not dissimilar to that of Metallica, the famous heavy metal band.

In the 1980s and 1990s, both have released excellent pieces. Since the 2000s, however, their production has been no more than average, and at times even mediocre. The reason for this: both are stuck in time, incapable of embracing advances in modern musical and legal art.

A last point, worth mentioning. On my own personal grid, to be “good”  a ruling must satisfy at least three conditions: maximise legal certainty; make sense from an economic perspective; use simple, clear language.  There are examples of very good rulings in the ECJ’s case-law. Think of Woodpulp which fullfills all of those conditions. Why can’t we, in 2012, benefit from a similar degree of quality when it comes to judicial production?