On the Notion of Restriction of Competition: What We Know and What We Don't Know We Know
Forthcoming in Damien Gerard, Massimo Merola and Bernd Meyring (eds), The Notion of Restriction of Competition: Revisiting the Foundations of Antitrust Enforcement in Europe (Bruylant 2017)
47 Pages Posted: 18 Oct 2016
Date Written: October 8, 2016
This piece presents systematically the contributions that the EU courts have made to the understanding of the notion of restriction of competition over the years. It examines, first, the issues around which there is consensus among commentators. It is undisputed, for instance, that a restriction cannot be established without considering the economic and legal context of which a practice is part. This assessment comprises the evaluation of the counterfactual. Secondly, the paper focuses on the issues that remain controversial. In this regard, it appears that the case law is more consistent and sophisticated than commonly conceded. In particular, the EU courts have followed a clear line when examining whether a practice is restrictive by object. Similarly, the relevant case law sheds sufficient light about the elements that are relevant in the context of an analysis of effects.
Keywords: Article 101 TFEU, Article 102 TFEU, EU merger control, counterfactual, object, effect, capability, likelihood
JEL Classification: K21, L14, L24, L41, L42
Suggested Citation: Suggested Citation