Restriction of competition by object or by effect: What else?

Antitrust Procedure Workshop organized by Concurrences in partnership with Norton Rose Fulbright.

Martine Behar-Touchais

Towards a return to a strict conception of restriction by object

Infringement by object is that which, on the basis of experience, produces harmful effects with certainty or near certainty; infringement by effect is that which produces harmful effects with an insufficient degree of certainty: they must therefore be proven

The distinction between restrictions by object and restrictions by effect is provided for in European and domestic legislation, which covers practices that "have as their object or effect the prevention, restriction or distortion of competition". Agreements that have the object of restricting competition are those that are by their very nature likely to have anti-competitive effects. The distinction is primarily of evidentiary interest, since prosecuting authorities do not have to demonstrate the effects of practices in the presence of restrictions by object, whereas they do in the presence of restrictions by effect. This presumption is based on the seriousness of the restriction and past experience. Moreover, a restriction by object constitutes by its very nature an appreciable restriction, punishable even in the absence of an appreciable effect. It is therefore possible to use this concept to lighten the burden of proof of the competition authorities, as the Court of Justice of the European Union seems to have done for a while, before returning to more rigour.

Photos © Léo-Paul Ridet.

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