Object and Intention Under Article 101 TFEU: Lessons from Australia, New Zealand and Analytical Jurisprudence
48 Common Law World Review 114, 2019
41 Pages Posted: 2 Jan 2020 Last revised: 21 Jan 2020
Date Written: December 11, 2019
What does it mean for an agreement to have an anticompetitive ‘object’ under Article 101(1) of the Treaty on the Functioning of the European Union? Can the European Commission support an ‘object’ case by reference to the agreement parties’ subjective intention, and if so, how? What exactly is the relationship between an agreement’s object and the parties’ subjective intention under competition law? This article is the first to bring insights from Australian and New Zealand cases, as well as analytical jurisprudence, to bear on these underexplored yet important questions affecting the European Union and common law jurisdictions around the world. Using Ronald Dworkin’s theory of legal interpretation as the analytical basis, this article argues for a ‘mixed’ conception of the ‘object’ concept which enables an anticompetitive object to be proven either objectively or subjectively. Anticompetitive subjective intention accordingly provides an independent, alternative basis for competition law liability for agreements; the lack of such intention, meanwhile, does not help exculpate parties who are liable based on their objective purpose to restrict competition. This article also argues that voluntariness and evidentiary limits ought to be imposed on the use of anticompetitive subjective intention in the ‘object’ analysis of agreements.
Keywords: Object, Intention, Article 101 TFEU, Australia, New Zealand, Comparative Law, Jurisprudence
JEL Classification: K21, L40, L41, L42
Suggested Citation: Suggested Citation