Restrictions by object under Article 101(1) TFEU: From dark art to administrable framework

Abstract

This article presents the principles underpinning the approach followed by the Court of Justice (ECJ) when evaluating whether a practice has, as its object, the restriction of competition. It discusses, inter alia, what an authority (or claimant) needs to prove and explains what the evaluation of the economic and legal context involves in concrete terms. The analysis shows that the ECJ’s overall approach is both predictable (in the sense that the notion has clear and finite boundaries) and administrable (in the sense that the said approach places adequate and workable demands on authorities and claimants). It appears, on the other hand, that there are ways in which some principles underpinning the case law could be streamlined and made more explicit so as to guarantee the uniform application of Article 101 (1) TFEU across the European Union at a time when private enforcement is on the rise.