The Court of Justice's Judgment in Generics (UK) V Competition and Markets Authority and the Object/Effect Dichotomy

Abstract

The EU Courts have regularly been called upon to engage with the object/effect dichotomy set out in Article 101 of the Treaty on the Functioning of the European Union (TFEU). This series of cases illustrates, that although the distinction between by object and by effect restrictions is relatively easy to make in theory, it is less clear in practice how the two concepts are to be distinguished. In Generics (UK) v Competition and Markets Authority the Court of Justice handed down another judgment in which it has sought to elucidate the object-effect distinction. This article considers how this judgment, in combination with other recent judgments of the EU Courts, has developed and clarified the case-law, especially in relation to horizontal cooperation agreements. It also considers some open questions which require clarification in future judgments.

Keywords: Article 101, restriction of competition, restriction by object, restriction by effect, patent settlement agreements, actual or potential competitors

JEL Classification: K21, L40, L41, L42