Object and Intention Under Article 101 TFEU: Lessons from Australia, New Zealand and Analytical Jurisprudence

41 Pages Posted: 2 Jan 2020 Last revised: 21 Jan 2020

See all articles by Kelvin Hiu Fai Kwok

Kelvin Hiu Fai Kwok

The University of Hong Kong - Faculty of Law

Date Written: December 11, 2019

Abstract

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

Kwok, Kelvin Hiu Fai, Object and Intention Under Article 101 TFEU: Lessons from Australia, New Zealand and Analytical Jurisprudence (December 11, 2019). 48 Common Law World Review 114, 2019, University of Hong Kong Faculty of Law Research Paper No. 2019/120, Available at SSRN: https://ssrn.com/abstract=3457829

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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