Chillin'Competition

I have just uploaded a new paper on ssrn. It can be downloaded here and is forthcoming in the next volume of the Yearbook of European Law.

The paper is entitled ‘Restrictions by object under Article 101(1) TFEU: from dark art to administrable framework‘. It may be legitimate to wonder whether yet another paper on this topic was really needed. I found myself hard at work on it before noticing for three main reasons.

First, there have been some key developments over the past year, including Superleague, the Servier saga (see here and here), FIFA v BZ and Banco BPN. These judgments have refined the existing framework in some respects and clarified the analytical structure in others. Taking stock of this crucial year for Article 101(1) TFEU felt indispensable.

Second, the Court had consistently held that a restriction by object must consider not only the content of the practice, but also its objetive aims and the legal and economic context of which it is a part. This formula is well known, but what it involves in practice is something that has only been seldom discussed in the literature.

A significant fraction of the paper explains, in light of the relevant case law, how the economic and legal context can influence the legal qualification of agreements and what objective aims the Court has considered to be legitimate.

In the coming weeks, I will be sharing on the blog some concrete examples of how the Court’s analytical framework operates in practice, and what it means for specific categories of conduct.

One of the main conclusions that I draw in this regard that the evaluation of the object of agreements is not only predictable and administrable, but also flexible, in the sense that it adapts to the features of the agreement and the surrounding context.

As a result, establishing the object of an agreement is straightforward when it makes sense for it to be and difficult when it needs to be.

Accordingly, the annulment of some decisions, whether at the national or the EU levels, should not be interpreted as meaning that the ‘by object’ route is demanding for an authority. It simply means that the ‘by object’ route was not the most obvious path in the specific circumstances of the case.

Third, changes in the enforcement patterns of EU antitrust provisions mean that discussions around the scope and meaning of the notion will become more frequent and pronounced than they have until now. The rise of private enforcement inevitably increases the potential for legal fragmentation.

Against this background, it came across as desirable to provide some structure to the case law. From a normative perspective, moreover, there appears to be some scope for the streamlining of the existing doctrines, so their meaning and operation become clearer.

I take this opportunity to thank those who took the time to comment on the piece as well as to this year’s College of Europe students, with whom I discussed an earlier draft. And very much look forward to your comments. As you know, I have nothing to disclose.