EU Ancillary Restraints: A Reasoned Approach to Article 101(1)

Abstract

By its terms, Article 101(1) of the Treaty on the Functioning of the European Union (TFEU) prohibits all agreements that restrict competition. Yet, over 40 years ago, the Court recognised that not every restriction of the parties’ economic freedom is necessarily a ‘restriction of competition’ within the meaning of the Treaty. Following this proclamation, a line of cases developed that have frustrated scholars and practitioners unable to find consistency in the law. But what constitutes a ‘restriction of competition’ is a fundamental question that demands a consistent interpretation.

This article analyses the doctrine of ‘ancillary restraints’, as it was first applied outside the EU, and how it has since been incorporated into EU law, in order to understand its implications for the meaning of ‘restriction’ within Article 101(1). By showing that the doctrine has been consistently applied under EU jurisprudence, and that it has a unique and important function within Article 101, this article supports the continued use of a reasoned approach to restraints, embodied in both US and EU law.

Keywords: rule of reason, per se, object, restriction, antitrust, competition, ancillary, restraint, doctrine, wouters, restrict