Restrictions by object: duck and elephant hunting with the Court of Justice* Inductive reasoning is sometimes explained by using either the ‘duck test’ (“if it looks like a duck, swims like a duck and quacks like a duck, then it probably is a duck”) or the ‘elephant test’ (“it is difficult to describe, but you know it when you see it”). In EU competition law, it sometimes feels that identifying a restriction of competition ‘by object’ is much the same. Using experience and intuition, we (and particularly competition authorities) believe we can tell when an agreement does restrict competition without actually assessing its effects on competition. This does, of course, lead to a risk of a perceived degree of arbitrary decision-making, other than in the case of hardcore cartels, which are now
The EU Court of Justice provides further clarity on when an agreement has the object of restricting competition (Groupement des Cartes Bancaires)
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