Transcript Making sense of Article 101 TFEU Economic insights

Making sense of Article 101 TFEU
Economic insights
Pablo Ibanez Colomo
London 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