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  

Pablo Ibáñez Colomo

London School of Economics - Law Department

Alfonso Lamadrid

Garrigues

Date Written: October 8, 2016

Abstract

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

Ibáñez Colomo, Pablo and Lamadrid, Alfonso, On the Notion of Restriction of Competition: What We Know and What We Don't Know We Know (October 8, 2016). 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). Available at SSRN: https://ssrn.com/abstract=2849831

Pablo Ibáñez Colomo (Contact Author)

London School of Economics - Law Department ( email )

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

Alfonso Lamadrid

Garrigues ( email )

Avenue Auderghem 22-28
Brussels, 1000
Belgium

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