The Enforcement of Article 101 TFEU - What Has Happened to the Effects Analysis?

Abstract

This paper critically examines the European Commission's commitment to employing a more 'effects-based' analysis in its enforcement of Article 101 TFEU. It finds that, while the European Commission developed an impressive theoretical framework for assessing the effects of agreements in the early 2000s, there has in fact been next to no effects analysis in its decision practice on Article 101 TFEU since then. In the overwhelming majority of cases, the European Commission has instead presumed the anticompetitive effects of prohibited agreements on the basis of the so-called 'object rule'. This paper explores possible reasons for this development, in particular new enforcement priorities following the decentralisation of the enforcement process in 2004 and the implications of adopting a welfare-based interpretation of Article 101 around the same time. It further examines whether alternative forms of enforcement, in particular enforcement at the Member State level, commitments decisions and private enforcement, are addressing the void that the Commission's focus on object restrictions has left. The analysis shows that this is not the case. Article 101 TFEU is currently not being enforced effectively against restrictions of competition by effect. This development is worrying because it leads to an under-enforcement of Article 101 TFEU in cases that do not fit the inherently error-prone categories of object restrictions, and risks setting an administrative precedent that Article 101 TFEU will in future no longer be enforced against restrictions that 'merely' have the effect of restricting competition.

Keywords: EU competition law, Article 101 TFEU, object restrictions, effects analysis, European Commission, national competition authorities

JEL Classification: K21