Anticompetitive object and effect: Does the recent EU case law bring clarity or fresh doubts?

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Synthesis

Luca Prete provided the audience with background information on the object/effect debate. In the 1960s, the Court of Justice issued important rulings like Consten and Grundlig (Joint Cases 56 and 58/64) or Société Technique Minière (Case 56/65). Some of the elements we are debating now were already mentioned to some extent in these cases. At the time, most authors thought that the object/effect divide related to the subjective intent of infringers. However, the Court of Justice soon clarified that the undertakings’ subjective motivation was not a decisive element in comparison with the objective purpose of an agreement. In fact, ambiguity has long prevailed regarding the difference between object and effect restrictions. In the early 2000s, Professor Whish considered that the case law was confused and confusing.