Re-Conceptualizing ‘Object’ Analysis Under Article 101 TFEU: Theoretical and Comparative Perspectives

14 Journal of Competition Law & Economics 467, 2018

University of Hong Kong Faculty of Law Research Paper No. 2019/007

25 Pages Posted: 11 Feb 2019 Last revised: 28 Apr 2019

See all articles by Kelvin Hiu Fai Kwok

Kelvin Hiu Fai Kwok

The University of Hong Kong - Faculty of Law

Date Written: January 29, 2019

Abstract

Recent expansive applications of the ‘object’ prohibition under Article 101 Treaty on the Functioning of the European Union have left the scope of ‘object’ restrictions in a state of uncertainty and incoherence. This article undertakes an unprecedented theoretical study of the ‘object’ test in comparison with U.S. antitrust law. It re-conceptualizes ‘object’ analysis as a form of preliminary enquiry that serves a similar classificatory function as a U.S. ‘quick look’ analysis, namely to distinguish naked restrictions from non-naked ones in order to determine whether summary condemnation or an effect-based analysis is called for. This normative theory rests on the important conceptual distinction between proximate and ultimate objects, and a detailed comparison of the methods of antitrust analysis under E.U. and U.S. law. The article constructs a ‘quick look’ framework for ‘object’ analysis that combines both theoretical and comparative insights, and applies this framework to critically analyze joint venture restrictions, regulatory restrictions, vertical restrictions, and industry restructuring arrangements.

Keywords: 'Object' Analysis, Article 101 TFEU, 'Quick Look', Comparative Competition Law, EU Competition Law, US Antitrust Law

JEL Classification: K21, L40, L41, L42

Suggested Citation

Kwok, Kelvin Hiu Fai, Re-Conceptualizing ‘Object’ Analysis Under Article 101 TFEU: Theoretical and Comparative Perspectives (January 29, 2019). 14 Journal of Competition Law & Economics 467, 2018; University of Hong Kong Faculty of Law Research Paper No. 2019/007. Available at SSRN: https://ssrn.com/abstract=3325139

Kelvin Hiu Fai Kwok (Contact Author)

The University of Hong Kong - Faculty of Law ( email )

Pokfulam Road
Hong Kong, Hong Kong
China

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