Chillin'Competition

I have been writing quite a bit (here and elsewhere) on some fundamental notions of competition law (in particular on the very meaning of the word competition in the Treaty and that of restriction). These discussions have become quite topical, and it looks like they will get even more so in the coming months.

What prompted me to write about them is not only that they are so important, but also a strange paradox: even though the case law of the Court has long been consistent and stable about the notion of competition and that of restriction, there are still some myths that refuse to go away. Claims that a restriction can be established independently of the economic and legal context, or claims that the counterfactual is not relevant at the ‘object’ stage are still heard, no matter how strong and consistent the evidence to the contrary.

In this spirit, I prepared a paper (see here). Even though it is on pay-for-delay, I thought it indispensable to spend some time discussing the fundamentals (e.g. competition under the Treaty = lawful actual or potential competition which would have existed absent the practice; in principle, a practice that is a plausible means to attain a pro-competitive does not have, as its object, the restriction of competition).

In the same spirit, I thought it could be useful to share the relevant excerpt of the paper here. It is considerably longer than my usual post, but hopefully it will get the discussion going! I would very much welcome your thoughts.

The notion of competition (and potential competition) in the case law

The notion of competition

The notion of competition was defined by the Court from the outset, in Société Technique Minière. According to that judgment, competition, for the purposes of the application of Article 101(1) TFEU, must be understood as that competition which would have existed in the absence of the practice under consideration.[1] Thus, the evaluation of the counterfactual (that is, of the conditions of competition with and without the practice) is implicit when assessing whether a given practice amounts to a restriction, whether by object or effect. In Société Technique Minière, the Court noted that an agreement within the meaning of Article 101(1) TFEU does not restrict competition if it is ‘really necessary’ to enter a new market. In those circumstances, the practice would not affect competition that would otherwise have existed.

This principle was fleshed out in subsequent case law. Objective necessity featured, inter alia, in Nungesser, which is an intellectual property-related ruling. The Court noted that, in the specific circumstances of the case, some of the restraints imposed in a licensing agreement were objectively necessary to give the necessary incentives to take the risk of producing and marketing the product in question.[2] As a result, they were deemed to fall outside the scope of Article 101(1) TFEU altogether.[3] In addition to objective necessity, the evaluation of the counterfactual may take into consideration legal barriers to entry. In certain circumstances, competition may not be altered by virtue of the practice if, for instance, they there are legal barriers to entry that preclude market entry. A case involving intellectual property rights is Micro Leader. In the economic and legal context of the case, a distribution agreement banning Canadian distributors from selling software in France would not restrict competition that would otherwise have existed as the sale of such products would have amounted to a copyright infringement.[4]

Because the analysis of the counterfactual makes it necessary to consider legal barriers to entry, it follows that the notion of competition within the meaning of Article 101(1) TFEU only encompasses lawful competition that would have existed in the absence of the practice. Accordingly, market entry that could only take place unlawfully (including through the breach of an intellectual property right) is not considered in the analysis. Whether or not competition is lawful requires an analysis of the context surrounding the practice. It may be the case, for instance, that the question of whether a firm can enter a market is a de facto consequence of the combination of several pieces of legislation. This was, in essence, the finding in E.On Ruhrgas,[5] where the General Court (‘GC’) concluded that the regulatory framework afforded, for a certain period, a de facto monopoly in one of the geographic areas covered by the agreement. As a result, the practice was deemed not to amount to an infringement during that period. The opposite – what one may call de facto lawful competition – may also be true. In Hoffmann-La Roche, the Court clarified that an off-label drug (that is, a drug that is given a used not corresponding to those specified in the marketing authorisation) may exercise a lawful competitive constraint on the products expressly authorised for a given treatment.[6]

The notion of potential competition

Competition within the meaning of Article 101(1) TFEU encompasses both actual and potential competition. Market entry that has not yet taken place (and may never do) will be considered in the analysis where it is of sufficient entity to significantly constrain the behaviour of market players. The relevant question is whether the threat of entry is sufficiently strong to impact the ability and incentive of existing players to influence the relevant parameters of competition to their advantage. In this sense, the analysis must consider whether, in reaction to a deterioration of the conditions of competition, one or more firms would undertake the costs involved in entering the relevant market, and this, within a relatively short period of time.[7] Two dimensions of potential competition are relevant in the assessment: the probability of entry and the timing of entry.

As far as the first is concerned, the question is not so much whether entry is a certainty or an inevitability but whether there are ‘real, concrete possibilities’ that it will occur.[8] In other words, it need not be shown that entry is certain. It would be sufficient to show that entry is likely. In other words – and borrowing from AG Kokott’s Opinion in Post Danmark II – this would mean showing that entry is ‘more likely than not’ to occur.[9] It would be reasonable to assume that this means, in concrete terms, that the probability of entry is over 50%. Several factors can be considered in this assessment, and in particular the barriers to entry.[10] Since, as pointed out above, only lawful competition counts as competition for the purposes of Article 101(1) TFEU, this category comprises legal barriers to entry (including intellectual property rights). As far as the second factor is concerned, the prospect of entry must be sufficiently swift for it to constrain the behaviour of existing players. The analysis of this second factor necessitates a case-by-case assessment of the economic and legal context.[11]

The notion of restriction by object in the case law

The evaluation of the object of an agreement is a case-specific inquiry

In order to determine whether an agreement is restrictive of competition by object, it is necessary to figure out its ‘precise purpose’.[12] According to a consistent line of case law, the object of a practice must be ascertained in light of the economic and legal context of which it is a part.[13] Thus, a restriction cannot be established in the abstract. By the same token, it is incorrect to assume that certain categories of agreements are contrary to Article 101(1) TFEU by their very nature. For instance, it is often assumed that horizontal price-fixing by suppliers or purchasers is restrictive by object. The case law provides concrete examples showing that this is not always true.[14] Similarly, horizontal market-sharing is not always a ‘by object’ infringement. In Ideal Standard, mentioned in the introduction, the Court clarified that the market sharing that necessarily follows a trade mark assignment is not necessarily restrictive of competition.[15]

Remia is perhaps the most relevant example to illustrate that it would be wrong to assume that some categories of conduct are necessarily prohibited by object irrespective of the nature of the agreement and its context. This case presents similarities with BIDS[16] and other market-sharing arrangements (including the ones discussed in this paper). In Remia, the seller of two businesses agreed to a non-compete obligation with the purchasers, as a result of which it agreed to leave the market for a certain period of time. The Court concluded that, in the context of an agreement for the sale of a business, a non-competition clause is not necessarily restrictive of competition, and may fall outside the scope of Article 101(1) TFEU altogether.[17] This conclusion was reached by looking at the conditions of competition that would have existed in the absence of the practice.[18] The evaluation of the counterfactual revealed that a non-competition clause in the relevant economic and legal context may be objectively necessary for the transaction to take place. In spite of the formal similarities with BIDS, the outcome was different. Unlike BIDS, the objective purpose of the market-sharing arrangement in Remia was to allow the purchaser to acquire the goodwill associated with the sale of a business.

Summing up, ascertaining the object of an agreement is a case-specific inquiry. The case law has taken into consideration a range of factors in this assessment. The features of the relevant market, for instance, may shed light on the ‘precise purpose’ of the practice. In Cartes Bancaires, for instance, the Court took into consideration the two-sided nature of the activity (payment card systems) when concluding that the arrangement was not restrictive by object.[19] In Asnef-Equifax, it identified a market failure (an information asymmetry) that could be addressed via the coordinated exchange of information about the creditworthiness of potential clients.[20] The nature of the product may also be a factor. In Nungesser, mentioned above, the Court noted the innovative nature of the plant variety and the investments involved in its development.[21] The position of the parties is also likely to provide insights on the object of the practice. For instance, the fact that the parties to a horizontal agreement fixing the purchasing prices of a good are small and face large suppliers (as in Gøttrup-Klim) may lead to the conclusion that it is not caught by Article 101(1) TFEU by its very nature.[22]

A careful analysis of the case law leaves no doubt about the relevance of these factors when trying to figure out the object of an agreement. However, it remains a controversial issue among commentators.[23] Several reasons may explain the ongoing confusion about this aspect of the case law. There is, first, still a perception that a restriction by object can be established mechanically, in the abstract. A related idea, which is equally widespread, sees the case-specific inquiry in light of the abovementioned factors somehow amounts to an analysis of the effects of the agreement.[24] It is true that factors such as the economic features of the industry, the structure or the market or the nature of the product are all relevant when evaluating the impact of a practice. This fact does not mean, however, that considering these factors when figuring out the object of an agreement amounts to an analysis of effects. Figuring out the object of an agreement remains a different exercise and one that, as explained above, by definition involves an evaluation of the economic and legal context.

As a rule, an agreement that is a plausible means to attain a pro-competitive aim is not restrictive by object

The Court has routinely evaluated the ‘precise purpose’ of agreements falling within the scope of Article 101(1) TFEU. The relevant case law suggests that, as a rule, an agreement is not deemed to restrict of competition by object where the ECJ identifies that it is a plausible means to attain a pro-competitive objective.[25] The case law on this point is consistent.[26] It is sufficient to illustrate it by reference to some of the judgments mentioned above. In Remia, for instance, the Court noted that the ‘precise purpose’ of the non-compete clause was to ensure that the transaction takes place.[27] In Asnef-Equifax, it noted that the ‘essential object’ of the exchange of information at stake was to give credit institutions more information about the potential borrowers and thus to allow them to make a more accurate decision about whether to lend money.[28] In Cartes Bancaires, the Court concluded that the object of the contentious clauses was to allow the parties to address a free-riding problem emerging from the features of the relevant market.[29]

Two aspects must be noted regarding the analysis of the object of an agreement. First, the case law shows that the threshold to rule out the ‘by object’ qualification is relatively low, one of plausibility.[30] In the relevant case law, the Court does not engage in a lengthy analysis of the pro-competitive aims sought by the agreement, and does not consider whether, in the relevant economic and legal context the agreement actually pursued the objective in question.[31] To use of the expression of the GC in MasterCard, the question of whether the agreement is a plausible means to achieve a pro-competitive aim is assessed in a relatively abstract manner.[32] Second, the single most reliable indicator in this regard is whether it is capable of generating efficiency gains. The joint purchasing agreement in Gøttrup-Klim, was deemed to ‘make way for more effective competition’ which would be manifested, for instance, in the form of economies of scale.[33] The exchange of information at stake in Asnef-Equifax, for instance, allows for transactions that are in the interest of both lenders and borrowers.[34] By addressing free-riding concerns, the clauses at stake in Cartes Bancaires gave the parties the necessary incentives to invest in, and maintain, the system.[35]

An agreement is only restrictive by object if it is capable of restricting competition

Once it is shown that the objective aim of an agreement is anticompetitive, it is not necessary to show that it has restrictive effects on competition.[36] The Court has consistently held that object and effect are alternative conditions.[37] Accordingly, an authority or claimant would be able to discharge the burden of proof merely by showing that the ‘precise purpose’ of the practice is to restrict competition. This fact does not mean that effects are entirely irrelevant in the evaluation of the object of a practice. Such effects need to be established by a claimant or authority, but are implicit in the assessment. As the Court held in T-Mobile, for an agreement to amount to a ‘by object’ infringement, it must be capable of restricting competition.[38] Capability is indeed a necessary (but not sufficient) condition for a practice to amount to a ‘by object’ infringement. By the same token, if an agreement turns out to be incapable of restricting competition, it would fall outside the scope of Article 101(1) TFEU altogether (it would neither have the object nor the effect of restricting competition).

In reality, saying that an agreement must be capable of restricting competition for it to amount to a ‘by object’ violation is another way of expressing the same ideas that have been discussed above. The evaluation of the capability of a practice to restrict competition is inherent in the analysis of the counterfactual. Where the market conditions would be the same with and without the agreement under consideration, the said agreement is incapable of restricting competition and as such falls outside the scope of Article 101(1) TFEU. This is the case, for instance, where the analysis of the counterfactual reveals that cooperation between the parties is objectively necessary to attain the pro-competitive aim sought by the parties or that any restriction of competition would not be attributable to the parties but to legal barriers to entry.

The case law on vertical restraints provides concrete examples of these ideas. A franchising agreement within the meaning of Pronuptia, for instance, is incapable of restricting competition and as such is not caught by Article 101(1) TFEU.[39] It is implausible to expect that undertakings would resort to franchising agreements if doing so would jeopardise their know-how and/or the reputation and uniformity of their formula. The counterfactual in the absence of the key clauses in a franchising agreement, accordingly, is one in which this business model is simply not used. The same can be said about selective distribution agreements within the meaning of Metro I.[40] It is implausible that such a business model would exist absent a clause prohibiting members of the distribution system from selling to non-members. For the same reasons, it is incapable of restricting competition.

The position expressed by the Court in T-Mobile is sensible. It seems difficult to see how the object of an agreement can be anticompetitive if it is incapable of affecting competition. Where it is not plausible to expect a practice to have restrictive effects, one can safely presume that its objective purpose is pro-competitive. Put differently, one can presume that a practice that, in a given economic and legal context, is objectively incapable of achieving a particular aim, will not be implemented to pursue that very aim. Thus, if the practice is observed in the marketplace, its underlying rationale must be a different, pro-competitive, one. For instance, if a price-fixing clause is introduced in a horizontal agreement concluded between two competitors with market shares below the de minimis threshold (and thus with no credible ability to influence the conditions of competition), one can conclude that the agreement is presumptively pro-competitive.

Gøttrup-Klim illustrates this idea particularly well. Formally-speaking, this agreement is difficult to distinguish from cartel arrangements. It involved, as Italian Raw Tobacco,[41] horizontal price-fixing by the purchasers of a product. The Court noted, in its analysis of the economic and legal context, that the parties in Gøttrup-Klim were small and faced large suppliers.[42] They lacked, in other words, significant market power. In such circumstances, the agreement was incapable of restricting competition that would otherwise have existed. For the same reasons, one could safely rule out, as the ECJ did, that such horizontal price-fixing arrangement had an anticompetitive object and was not in any way comparable to a cartel.

Saying at the same time that effects need not be established, on the one hand, and that ‘by object’ infringements must be capable of restricting competition, on the other, may come across as contradictory. It is not easy to claim, at the same time, that an authority or claimant is able to discharge its burden of proof without showing an anticompetitive effect and that the capability of the practice restricting competition is still an aspect of the analysis. Either the analysis of effects is relevant or it is not. This seeming contradiction is not real, however. The two aspects of the case law can be reconciled. A finding that a practice has as its object the restriction of competition encapsulates a presumption that the practice in question is capable of having anticompetitive effects. By establishing the former, the latter is deemed to have been established.[43]

It is possible for the parties to rebut the presumption and show that the agreement is incapable of restricting competition and that, as a result, it falls outside the scope of Article 101(1) TFEU altogether. That this possibility exists was made explicit by the Court in Murphy.[44] The case concerned practices aimed at restricting cross-border trade within the EU, which are in principle restrictive by object. The ECJ expressly held that it is possible for the parties to provide evidence revealing that the agreement is not liable to restrict competition and thus not restrictive by object.[45] The Guidelines on vertical restraints provide an example of how the rebuttal of the presumption works in practice. As a practice restricting cross-border trade, restricting the ability of a distributor to engage in passive selling outside its allocated territory is in principle restrictive by object.[46] However, the Commission concedes in its Guidelines that there may be instances in which restricting passive sales is objectively necessary for the transaction to take place.[47] In such circumstances, the agreement would fall outside the scope of Article 101(1) TFEU altogether, as it would be incapable of restricting competition that would otherwise have existed.

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