Defining restrictions “by object”

This article develops a definition of restrictions by object which fits well in an overall effect-based approach under Article 101. Classification as restriction by object is justified if and how a particular type of restriction generally results in net negative effects, which can be expected if such a restriction is (highly) unlikely to be used to create efficiencies. Restrictions are unlikely to be used to create efficiencies if they are unable to create efficiencies or because other restrictions are superior to create the concerned efficiencies. Basing the classification of by object restrictions on the low likelihood to create efficiencies provides a clear limiting principle for their definition, ensuring that the by object label is only applied to restrictions that are generally used to restrict competition to the detriment of consumers. Once a particular type of restriction is defined as by object, it should not be necessary to undertake an investigation into the market conditions and the effects of an individual agreement containing such a restriction. That would defy the object of having the category of restrictions by object .

(Principal Expert Antitrust Policy, DG Competition, European Commission. This article was written during my stay as Senior Emile Noël Fellow at the Jean Monnet Center for International and Regional Economic Law & Justice, New York University. The opinions expressed in this article are strictly personal; they do not represent the views of the European Commission, DG Competition or any other institution, entity, person, etc. I have benefitted from discussions with and feedback from Ekaterina Rousseva, Anna Vernet, Cyril Ritter, Rainer Becker, Svend Albaek, Eleanor Fox, Harry First, Pietro Faraguna and Dominik Steiger. Aine Ryall improved the English. All errors and omissions are the author’s. Although I do not consider that there is any conflict of interest, it may be considered

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Luc Peeperkorn, Defining restrictions “by object” , September 2015, Concurrences Review N° 3-2015, Art. N° 74812, pp. 40-50

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