Abstract:

The distinction between restrictions “by object” and “by effect” has re-surfaced in the last few years as a central issue in the EU competition debate in parallel with a number of recent decisions by the Court of Justice. This is still a largely unresolved and, admittedly, quite confusing area, which may appear surprising given its crucial, central role within EU antitrust law. Without any ambition of systematically going through the vast literature on the topic, the aim of this article is, moving from the legal rationale underlying the antitrust assessment of agreements/concerted practices, to propose a framework of analysis for determining when a “restriction by object” is the right category to use. For this purpose, the key role of this distinction in the EU competition system and the major ambiguities contained in the Court of Justice statements around the “object/effect” dichotomy will be outlined, thereby attempting a general schematization of the main positions on the issue. A proposed framework of analysis will then be illustrated, arguing that the key criterion to be followed is the likelihood of anticompetitive effects and, through this, it is possible to differentiate between hard-core/“naked” infringements, (other) object restrictions (requiring a well construed theory of harm to show likelihood of effects) and effects restrictions (ascertained on the based of full empirical analysis). In practice, a four-step test is proposed: i) verify whether the alleged infringement could be classified as “hard-core”; in the negative, ii) proceed by testing whether there is a clear likelihood of anticompetitive effects; then, absent this, iii) make a deeper/empirical effects analysis; finally (in all cases) iv) verify whether Art. 101(3) may play any role. The proposed approach will also be tested on some specific types of infringements.

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