The Effects-Based Approach Under Article 101 TFEU and its Paradoxes: Modernisation at War with Itself?

Abstract

The present contribution aims to assess the extent to which the advent over the past ten years of a so-called “effects-based approach” in the enforcement of EU competition law has modified the notion of restriction of competition in relation to agreements and other collaborative arrangements. To that effect, it first attempts to capture the transformation induced by the move toward the effects-based approach (part I) and then assesses the consequences thereof for the enforcement of Article 101 TFEU (part II). The thrust of the argument lies in the fact that the substantive modernization of EU antitrust enforcement is a welcome evolution but one that is not immune of some significant paradoxes. Hence it wonders: is not modernization a policy at war with itself?

Keywords: EU compétition law, antitrust, modernization, agreement, concerted practices, effects-based approach, vertical restraints, horizontal cooperation, restriction by object, restriction by effects

JEL Classification: K21