Lost in Translation
[Please read this post with caution] Heard from a seasoned German-speaking Member of the Court of justice of the EU.
The fuzz about the object-effect dichotomy that has kept generations of EU competition lawyers busy would be a moot issue. We dumd: last year, at the GCLC, we devoted a full conference and book to this issue.
This is because this distinction arguably does not exist [following Hans, Petra and Rainer’s clarifications, I suspect this eminent person meant is “not really relevant”] in the German-language version of the Treaties. Hence the Court’s reluctance to consider effects in antitrust cases.
Puzzled by this assertion, I ran my investigation. At this juncture, I must mention that I am a complete German illiterate.
So here we go: I first consulted the wording of Article 101(1) of the Treaty in German:
“(1) Mit dem Binnenmarkt unvereinbar und verboten sind alle Vereinbarungen zwischen Unternehmen, Beschlüsse von Unternehmensvereinigungen und aufeinander abgestimmte Verhaltensweisen, welche den Handel zwischen Mitgliedstaaten zu beeinträchtigen geeignet sind und eine Verhinderung, Einschränkung oder Verfälschung des Wettbewerbs innerhalb des Binnenmarkts bezwecken oder bewirken, insbesondere”
Then I asked Google to translate this text to English:
“(1) The internal market incompatible and all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object the prevention, restriction or distortion of competition within the internal market and in particular those”
No trace of the word “effect“.
I did the same in French:
“(1) Le marché intérieur incompatibles et interdits tous accords entre entreprises, toutes décisions d’associations d’entreprises et toutes pratiques concertées qui sont susceptibles d’affecter le commerce entre États membres et qui ont pour objet d’empêcher, restreindre ou de fausser la concurrence au sein du marché intérieur et en particulier ceux”
Again, no trace of the word “effect“.
A weird finding. All the more so given that the official Treaty translation explicitly talks of “effect“.
So here I am, pondering whether I am making this up or if, as this distinguished Court Member hinted, there is a linguistic reason for the absence of serious effects analysis in the Court’s case-law.
Now, if the other language versions of the Treaty talk of “effect“, which version of the Treaty is the right one?
Gee, me completely lost in translation.
PS1: On this, I’d advise Google to manipulate its translation service, and reintroduce the “effect” word in all Treaty translations.
See below for more evidence (a print of my screen).
Chillin'Competition 
Nicolas, there is both object and effect in the German version. “Bezwecken” (have as their object) and “bewirken” (have as their effect).
Hans Zenger
15 March 2013 at 9:56 am
Hans, that’s a big relief.
If I may abuse: could the point be that those words in German do not mean something as straightforward as the distinction we draw in English and French?
I remain puzzled that Google translate skipped the effect word.
Nicolas Petit
15 March 2013 at 10:05 am
I am not a native speaker but as far as I understand these verbs are quite straightforward: Zweck is object and Wirkung effect, thus: Bezwecken means sth like I am aiming at sth and bewirken that it has an effect…
Petra
15 March 2013 at 10:16 am
Quite straightforward, true. Maybe my contact meant in 102 TFEU (but there I have less issue, the French and English version are also silent). Will ask again.
Another language request: I was told that the German version of the Guidance paper talks at some stage of “very likely” effects. True, untrue???
Nicolas Petit
15 March 2013 at 10:32 am
Take a look here:
http://dict.leo.org/?lp=ende&search=bewirken
http://dict.leo.org/ende/index_de.html#/search=bezwecken
rainergrossmann
15 March 2013 at 10:39 am
Which guidelines do you refer to re «“very likely” effects»? 2009/C 45/02?
rainergrossmann
15 March 2013 at 10:52 am
The 102 Guidance paper on exclusionary abuses
Nicolas Petit
15 March 2013 at 10:54 am
Trying to make sense of this: the point is maybe that whilst in German the object/effect divide has clear meaning (purpose/aim/intent on the one hand, outcome on the other hand) – thanks Rainer for the links – in French, this is less clear: object can mean purpose but also a likely outcome. So maybe the meaning of the point was that for Germans, there’s no need to try to distinguish – as we Anglo-French speaking scholars do – two notions which are plain different.
Nicolas Petit
15 March 2013 at 11:29 am
Haven’t really found someting. Looked for “Auswirkungen” (effects), “sehr wahrscheinlich” (very likely) and “hohe Wahrscheinlichkeit” (high probability).
In para. 71 the German text says ” Es reicht z.B. aus, wenn das Kampfpreisverhalten aller Wahrscheinlichkeit nach einen Preisrückgang verhindern oder verzögern würde,…”. The English text reads: “It is sufficient, for instance, that the conduct would be likely to prevent or delay a decline in prices that would otherwise have occurred,…”
“Aller Wahrscheinlichkeit nach” for me means a higher probability than “likely”. I would translate “aller Wahrscheinlichkeit nach” rather with the words “in all probability”.
rainergrossmann
15 March 2013 at 11:46 am
Then it must be that. Thanks a lot Rainer.
The French version of §71 does not talk of a higher probability, just of likelihood: “Il suffit, par exemple, que ce comportement soit susceptible d’empêcher ou de retarder une baisse des prix qui se serait, autrement, produite”.
Nicolas Petit
15 March 2013 at 11:57 am
You are welcome! Glad I could help. It seems that there are avoidable ambiguities in the different language versions of the guidance paper.
rainergrossmann
15 March 2013 at 12:36 pm
The guidelines on horizontal cooperation have a particularly bad German language version. There are several mistakes but some reverse the original meaning into the complete opposite. Here are just two examples:
para. 278: “[…] would normally fall outside the scope of Artide 101(1)” turned into “normalerweise in den Anwendungsbereich von Artikel 101 Absatz 1 fallen” (i.e. “fall inside the scope of”) in the German version
para. 325: “other technological solutions” turned into “dieselben technischen Lösungen” (i.e. “the same technical solutions”) in the German version
Hendrik
16 March 2013 at 1:20 am
There’s a similar problem with the Czech version of the guidelines on vertical restraints… Para 223 says in English: ” Where an agreement includes RPM, that agreement is presumed to restrict competition and thus to fall within Article 101(1).” In Czech it says: “Pokud dohoda obsahuje stanovení cen pro další prodej, je považována za omezující hospodářskou soutěž, a tedy nespadá do působnosti čl. 101 odst. 1.” (ie. does NOT fall within)… Another opposite translation may be found in one of the merger guidelines….
Petra
16 March 2013 at 1:11 pm
Distinction between object and effect are extremely complicated even if you read about it in one language: see the judgment by the ECJ just two days ago in C-32/11 Allianz et al.In that case,the ECJ confirmed that object means you do not need to look at effects (para 34), and then went on to say that the given agreements may be a restriction by object
“in the event that the referring court found that it is likely that, having regard to the economic context, competition on that market would be eliminated or seriously weakened following the conclusion of those agreements. In order to determine the likelihood of such a result, that court should in particular take into consideration the structure of that market, the existence of alternative distribution channels and their respective importance and the market power of the companies concerned.”(para 48)
Or maybe the German version of the judgment provides more clarity?:)
Asimo
16 March 2013 at 4:30 pm
@ Asimo: C-31/22 is very interesting indeed, even in para. 34 where the Court states that:
‘Accordingly, where the anti-competitive object of the agreement is established it is not necessary to examine its effects on competition. Where, however, the analysis of the content of the agreement does not reveal of harm to competition, the effects of the agreement should then be considered and, for it to be caught by the prohibition, it is necessary to find that factors are present which show that competition has in fact been prevented, restricted or distorted to an appreciable extent’
Is it just me or is the second sentence of this para introducing an ‘appreciability’ requirement in the object category? Only if there is not a sufficient degree of harm to competition should the effects be considered. Note that this is identical in the German version that refers to ‘keine hinreichende Beeinträchtigung’.
Hans Vedder
22 March 2013 at 2:53 pm
Hmmm…indeed, the ECJ’s statement in para 34, which states that “Where, however, the analysis of the content of the agreement does not reveal a sufficient degree of harm to competition, the effects of the agreement should then be considered” appears to indicate that the difference between object and effect are merely “degrees” of harm. This would blur the distinction between these conceptually very different categories: for object, the authority is in a convenient situation as it needs nothing to prove but the infringement itslef (without effects), while for effect, the authority needs to prove effects on the market as well…Or will we soon see an opaque world where object and effect will be like “agreement” and “concerted practices”, being merely different in terms of degree but not in substance???
Asimo
25 March 2013 at 3:11 pm