ARTICLE: EFFECT-BASED APPROACH - ASSESSMENT - MODERNISATION - BY-OBJECT RESTRICTION

The effect-based approach in competition law: An assessment

While the introduction of a more economical approach of the restriction of competition and of the modernization of competition law were intended to bring significant changes in competition law enforcement, it is now both necessary and possible to assess to what extent the effect-based approach has been implemented. For various reasons, which are addressed in this article, we contend that, to date, the implementation of this approach seems rather limited, if not impossible, particularly in view of the ever increasing extension of the scope of the restriction-by-object of competition.

*This article is an automatic translation of the original article, provided here for your convenience. Read the original article. 1. Under Articles 101 TFEU and L. 420-1 of the French Commercial [1]Code, competition law makes a distinction between practices "having as their object" and those "having the effect" of restricting competition. It is settled case law that these two criteria - commonly referred to as the "object/effect alternative" - are alternative and not cumulative [2]. 2. Practices which "have as their 'object' the restriction of competition [3] are defined by the European Commission (hereinafter the 'Commission') Guidelines on Article 101(3) TFEU as those 'which by their nature have the capacity to do so', which is agreed to be a self-referential definition. Once it

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Romain Maulin, The effect-based approach in competition law: An assessment, September 2015, Concurrences N° 3-2015, Art. N° 73846, pp. 24-39

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