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Archive for April 8th, 2020

Restrictions by object after Generics and Budapest Bank: a road map

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It was relatively frequent to hear, until not so long ago, that it was not possible to discern, from the case law, a clear set of principles spelling out what a restriction of competition is. I have never been of this view (as explained here) but I understand where it was coming from.

The case law that followed the adoption of Regulation 1/2003 significantly clarified matters. Generics and Budapest Bank, the two most recent landmarks, provide the answers and the vocabulary we needed to present the Court’s interpretation of the notion of restriction by object in a systematic way.

Following the analysis of the said two judgments (I look forward to sharing some more thoughts on them in due course), I told myself it could be a good idea to draw a road map of the principles underpinning the case law and the way they have been applied by the Court over the years (there appears to be a clear and consistent trend dating back to the early days).

The road map is presented below and can also be downloaded here.

When evaluating whether an agreement amounts to a ‘by object’ infringement, two separate questions arise:

  • First, what would an authority (or claimant) need to show to discharge its legal burden?
  • Second, what sort of contrary evidence would the parties to the agreement need to adduce, and to what standard?

In relation to the first question, I understand the case law, as synthesised in Generics and Budapest Bank, as revolving around the following principles:

What needs to be proved

It was clear since Murphy that the parties may show that an agreement is not capable of restricting competition (and thus not restrictive, whether by object or effect). Generics and Budapest Bank confirm (and make it explicit) that the parties may also provide evidence, for the same purposes, showing that the agreement in question is capable of having a pro-competitive or ambivalent impact. More precisely:

Adducing contrary evidence

Your comments and questions would be most welcome.

Written by Pablo Ibanez Colomo

8 April 2020 at 8:14 am

Posted in Uncategorized