Restrictions by Object in the Case Law of the Court of Justice: In Search of a Systematic Approach

Abstract

This paper aims to provide a reasoned overview of the evolution of the case-law on restrictions by object, trying to make the most of the indications of the Court of Justice in Cartes Bancaires. In the first ten years since the entry into force of regulation no. 1/2003, the European Commission and national competition authorities have made a broad, unprecedented use of the notion of restriction by object in the application of Article 101(1) TFEU. The case-law of the Court of Justice and the General Court which accompanied this evolution allowed to a certain extent differing interpretations of the relevant criteria in order to assess whether there is a restriction of competition by object within the meaning of Article 101(1). By 2013 it was clear that, in the absence of clear boundaries between the concepts of restriction by object and restriction by effect, the system of application of Article 101 risked becoming unbalanced. In the Cartes Bancaires judgment of September 2014 the Court of Justice provided the needed clarification, explaining the reasons why the restriction by object concept should be interpreted narrowly.

The paper also discusses the relation between restrictions by object and the treatment of agreements of minor importance (de minimis) under Article 101 TFEU, which was addressed by the Court of Justice in the Expedia preliminary ruling of 2012. In a systemic perspective it is controversial whether this judgment overrules the consolidated case-law, based on the Franz Völk judgment of 1969, on agreements which do not have an appreciable impact on the market. The authors argue that it is possible to reconcile Expedia with Völk and that this reconciliation is necessary to attain a reasonable application of Article 101.

Finally, the paper argues that the current discussion on the application of Article 102 TFUE in light of the recent case-law of the General Court (Intel) and the Court of Justice (Post Danmark 2) recalls in some respects the debate on the use of restrictions by object in the application of Article 101. A clear framework is advocated for the future application of Article 102, consistent with the framework for the application of Article 101 and not unduly expanding the “restrictions by nature” box.

Keywords: antitrust, competition law, anticompetitive agreements, restriction by object, de minimis

JEL Classification: K21, L4, L41