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Making sense of Article 101 TFEU Economic insights

Making sense of Article 101 TFEU Economic insights. Pablo Ibanez Colomo London School of Economics. What we know and what we do not know about Article 101(1) TFEU. A restriction by object is established in light of the nature and the context of the agreement

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Making sense of Article 101 TFEU Economic insights

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  1. Making sense of Article 101 TFEUEconomic insights Pablo Ibanez ColomoLondon School of Economics

  2. What we know and what we do not know about Article 101(1) TFEU • A restriction by object is established in light of the nature and the context of the agreement • The subjective intent of the parties is not a decisive factor... • ...nor is the formal dimension of the restraints (price-fixing, market sharing) • How is that different from the assessment of restrictive effects under Article 101(1) TFEU? • And from the question of whether the agreement satisfies the conditions of Article 101(3) TFEU?

  3. What we know and what we do not know about Article 101(1) TFEU • The category of object restrictions encapsulates a presumption of some sort • ...but an agreement may restrict competition by object irrespective of its effects • In fact, EU courts examine the restrictive nature of the agreement (‘by its very nature’)

  4. What we know and what we do not know about Article 101(1) TFEU • The pro-competitive aspects of the agreement are not irrelevant under Article 101(1) TFEU • This means that some form of balancing must take place under the paragraph (Metro II)... • ... but the analysis of these considerations remains relatively ‘abstract’ (Mastercard)... • ...and has to be different from the assessment of agreements under Article 101(3) TFEU

  5. What is a restriction by object? • Is not it all about the plausibility of an efficiency explanation for a restraint? • Analysis of the nature and context of the agreement = plausibility of the explanation • The form of the restraint (price-fixing, market sharing) is as such irrelevant • Absent a plausible efficiency explanation, anticompetitive intent can safely be presumed • Likewise, it is presumed that the agreement does not have pro-competitive effects, not the opposite

  6. What is a restriction by object? • The case law can be systematised in light of this interpretation • Systematic assessment of the rationale behind the agreement (Nungesser, Pronuptia, Delimitis...) • Influence of the context on the conclusions (John Deere vs. Asnef-Equifax vs. T-Mobile) • Recent prominence of the rhetoric of ‘objective justification’ (Pierre Fabre)

  7. What is a restriction by object? • This interpretation needs to be qualified in some cases • Market integration: the test seems to become one of necessity (vs. plausibility): Coditel II, Erauw • Vertical price-fixing seems to be examined in a different light (Binon, Pronuptia)

  8. Assessing restrictions by effect • The pro-competitive dimension of the agreement is relevant to establish its nature • Efficiency gains are not quantified nor balanced against negative effects under Article 101(1) TFEU • Any balancing under Article 101(1) TFEU is thus based on presumptions (Mastercard) • Again, some support in the case law: • Metro I, Metro II and selective distribution • Gottrup-KlimandWouters

  9. What role for Article 101(3) TFEU? • The explicit quantification of efficiency gains would be relevant where: • Restraints that cannot be plausibly explained on efficiency grounds (BIDS) • Agreements with the potential to have serious anticompetitive effects (Interbrew) • Agreements restricting parallel trade (GlaxoSpain) or providing for RPM (Guidelines) • Compare: efficiencies in merger control and objective justification under Article 102 TFEU

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