Article 101 TFEU and Market Integration

Forthcoming in (2016) 12 Journal of Competition Law & Economics

LSE Legal Studies Working Paper No. 07/2016

26 Pages Posted: 5 May 2016 Last revised: 26 May 2016

See all articles by Pablo Ibáñez Colomo

Pablo Ibáñez Colomo

London School of Economics - Law Department

Date Written: March 15, 2016

Abstract

Market integration is an objective of Article 101 TFEU. As a result, agreements aimed at partitioning national markets are in principle restrictive of competition by object. The case law on this point has been consistent since Consten-Grundig. Making sense of it, however, remains a challenge. The purpose of this piece is to show, first, how the methodological approach followed by the Court of Justice changes when market integration considerations are at stake. Secondly, it explains why and when restrictions on cross-border trade have been found not to restrict competition by object within the meaning of Article 101(1) TFEU.

An agreement aimed at partitioning national markets is not as such contrary to Article 101(1) TFEU if the analysis of the counterfactual reveals that it does not restrict inter-brand and/or intra-brand competition that would have existed in its absence. It is possible to think of three scenarios in this regard: (i) an agreement may be objectively necessary to achieve the aims sought by the parties; (ii) a clause may be objectively necessary for an agreement and (iii) competition is precluded by the underlying regulatory context (as is the case, in particular, when the exercise of intellectual property rights is at stake).

JEL Classification: JEL: K21; L42; L82; L86; O34

Suggested Citation

Ibáñez Colomo, Pablo, Article 101 TFEU and Market Integration (March 15, 2016). Forthcoming in (2016) 12 Journal of Competition Law & Economics; LSE Legal Studies Working Paper No. 07/2016. Available at SSRN: https://ssrn.com/abstract=2747784 or http://dx.doi.org/10.2139/ssrn.2747784

Pablo Ibáñez Colomo (Contact Author)

London School of Economics - Law Department ( email )

Houghton Street
London WC2A 2AE, WC2A 2AE
United Kingdom

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