Making sense of Article 101 TFEUEconomic insights

Pablo Ibanez ColomoLondon School of Economics

What we know and what we do not know about Article 101(1) TFEU

• A restriction by object is established in light of the nature and the context of the agreement– The subjective intent of the parties is not a decisive

factor...– ...nor is the formal dimension of the restraints

(price-fixing, market sharing)– How is that different from the assessment of

restrictive effects under Article 101(1) TFEU?– And from the question of whether the agreement

satisfies the conditions of Article 101(3) TFEU?

What we know and what we do not know about Article 101(1) TFEU

• The category of object restrictions encapsulates a presumption of some sort– ...but an agreement may restrict competition by

object irrespective of its effects– In fact, EU courts examine the restrictive nature of

the agreement (‘by its very nature’)

What we know and what we do not know about Article 101(1) TFEU

• The pro-competitive aspects of the agreement are not irrelevant under Article 101(1) TFEU– This means that some form of balancing must take

place under the paragraph (Metro II)...– ... but the analysis of these considerations remains

relatively ‘abstract’ (Mastercard)...– ...and has to be different from the assessment of

agreements under Article 101(3) TFEU

What is a restriction by object?

• Is not it all about the plausibility of an efficiency explanation for a restraint?– Analysis of the nature and context of the agreement

= plausibility of the explanation– The form of the restraint (price-fixing, market

sharing) is as such irrelevant– Absent a plausible efficiency explanation,

anticompetitive intent can safely be presumed– Likewise, it is presumed that the agreement does not

have pro-competitive effects, not the opposite

What is a restriction by object?

• The case law can be systematised in light of this interpretation– Systematic assessment of the rationale behind the

agreement (Nungesser, Pronuptia, Delimitis...)– Influence of the context on the conclusions (John

Deere vs. Asnef-Equifax vs. T-Mobile)– Recent prominence of the rhetoric of ‘objective

justification’ (Pierre Fabre)

What is a restriction by object?

• This interpretation needs to be qualified in some cases– Market integration: the test seems to become one

of necessity (vs. plausibility): Coditel II, Erauw– Vertical price-fixing seems to be examined in a

different light (Binon, Pronuptia)

Assessing restrictions by effect

• The pro-competitive dimension of the agreement is relevant to establish its nature– Efficiency gains are not quantified nor balanced

against negative effects under Article 101(1) TFEU– Any balancing under Article 101(1) TFEU is thus

based on presumptions (Mastercard)– Again, some support in the case law:• Metro I, Metro II and selective distribution• Gottrup-Klim and Wouters

What role for Article 101(3) TFEU?

• The explicit quantification of efficiency gains would be relevant where:– Restraints that cannot be plausibly explained on

efficiency grounds (BIDS)– Agreements with the potential to have serious

anticompetitive effects (Interbrew)– Agreements restricting parallel trade (Glaxo Spain)

or providing for RPM (Guidelines)• Compare: efficiencies in merger control and

objective justification under Article 102 TFEU