Non-Competition Interests in EU Antitrust Law: An Empirical Study of Article 101 TFEU, Or BROOK

Or Brook

This section selects books on themes related to competition laws and economics. This compilation does not attempt to be exhaustive but rather a survey of themes important in the area. The survey usually covers publication over the last three months after publication of the latest issue of Concurrences. Publishers, authors and editors are welcome to send books to for review in this section.

The issue of how non-competition interests should or could be taken into account to justify an otherwise anti-competitive agreement has been written about extensively from different perspectives such as historical background, constitutional interpretation and economic theory. However, not much attention has been paid to how the enforcers have administered this process in practice. Or Brook, lecturer of competition law at the University of Leeds, through her new book Non-Competition Interests in EU Antitrust Law, from an empirical standpoint, explores the rationale, method, and limits for balancing competition and non-competition interests in the enforcement of Article 101 of the Treaty on the Functioning of the European Union (TFEU).

Based on a comprehensive database of more than 3,100 enforcement actions by the Commission, the EU courts, and the national competition authorities (NCAs) and courts of five representative Member States from 1957 to 2017, Prof. Brook’s study reveals findings that were previously unnoticed in case studies on the tools used by enforcers to account for non-competition interests. The book not only identifies the “explicit-substantive” forms of balancing competition and non-competition interests, but also demonstrates the “implicit-procedural” manner in which the enforcers refused to apply Article 101 TFEU to promote non-competition interests. Structured in eight chapters, it follows a trajectory from historical to empirical angles to present the reader with an analytical framework of the role of non-competition interests in the enforcement of the EU’s prohibition on anti-competitive agreements.

Following an introductory chapter which sets out the research question, methodology and definitions, Chapter 2 provides a historical overview of the development of the balancing framework under Article 101 TFEU. After indicating the lack of a clear balancing mechanism in the laws and regulations at the EU level, it focuses on the practices of the Commission, EU courts and five representative Member States by looking into four enforcement periods to better understand the shaping of balancing principles.

Chapters 3 to 5 are dedicated to Article 101(3) TFEU individual exemptions, Block Exemption Regulations (BERs) and the balancing tools embedded in Article 101(1) TFEU, respectively. In Chapter 3, the empirical findings pointed out a wide divergence in the applications of Article 101(3) TFEU by the Commission, NCAs, and EU and national courts. It shows that following the modernisation of EU competition law, this Article was applied on a very limited basis. Chapter 4 demonstrates the BERs’ switch to an effects-based approach from instruments with a regulatory character. It discusses the different types of BERs, the effects of their modernisation, and the balancing process in adopting and applying a BER. Chapter 6 examines two categories of balancing tools under Article 101(1) TFEU. The first category is the state and public interest balancing tools, such as the state action defence, the notion of undertakings, the Article 106(2) TFEU exception for services of general economic interests, the exception for collective bargaining agreements between employers and employees, and the inherent restriction doctrine. The second category concerns commercial interest exceptions such as the rule of reason, objectively necessary agreements, ancillary restraints, and the de minimis doctrine.

Chapters 6 and 7 study the national and implicit-procedural balancing tools. Chapter 6 reveals that the national balancing tools may accept agreements that would not be tolerated under the EU balancing tools of Article 101(1) and (3) TFEU, which have acted as a substitute for the EU explicit-substantive rules. Furthermore, these tools limited to purely national cases often can impose de facto effects on cases involving trade between Member States. As for the implicit tools, Chapter 7 focuses on the exercise of the competition enforcers’ enforcement discretion and priority setting. It shows that following the entry into force of Regulation (EC) No. 1/2003, the more economic approach has narrowed down the room for the consideration of non-competition interests under the explicit-substantive tools and, in the meanwhile, the shift to the decentralised self-assessment enforcement regime has incentivised the competition enforcers to devote their efforts on hard-core restrictions that are unlikely to be justified. As a result, the enforcers have used their discretion to excuse agreements even when they cannot be exempted under Article 101(1) and (3) TFEU.

Chapter 8 concludes that, as opposed to prevailing belief that the modernisation

of EU competition law in 2004 removed non-competition interests from the enforcement of Article 101 TFEU, the empirical findings have shown that non-competition interests continue to have its place in the enforcement of Article 101 TFEU. It then identifies the shift patterns of how non-competition interests are taken into account since the modernisation.

This book, which offers a diverse and bold approach to analysing the balancing principles under Article 101 TFEU, covers a great number of topics that have previously received limited attention in scholarship. As a significant contribution to the EU competition law, it is highly recommended for researchers, academicians, and policy-makers interested in understanding the rationalisation of the role of non-competition interests under Article 101 TFEU.