King, Saskia
(2015)
Agreements that restrict competition by object under
Article 101(1) TFEU: past, present and future.
PhD thesis, London School of Economics and Political Science.
Abstract
This thesis conducts a robust and granular examination of the concept of ‘object’ under Article 101(1) TFEU and its resulting legal and practical implications. To that end, a methodology focusing on the case law of the European Courts and other primary sources is adopted. This enables a legal analysis of the meaning, application and role of restrictions of competition by object to be undertaken. The case law reveals three key approaches adopted by the European Courts to restrictions by object: the ‘orthodox approach’, the ‘more analytical approach’ and an amalgamation of these two approaches, the ‘hybrid approach’. This finding immediately questions the dominance of the orthodox approach within legal discourse over the years. The orthodox approach contends that a limited category of agreements are considered by law to automatically restrict competition by virtue of their object. This is reflected in the European Commission’s Article 81(3) Guidelines and is encapsulated by the widely recognised ‘object box’. This thesis poses a direct challenge to such narrow interpretation of the law. It argues that this depiction of the law does not fully reflect the jurisprudence of the European Courts. Rather the case law reveals an alternative interpretation of the concept of object based on the seminal case of Société Technique Minière concerned more with determining the aim of the agreement within its legal and economic context as opposed to its categorisation. Moreover, the ‘more analytical approach’ benefits from greater judicial support. Having established the three key approaches and their application under Article 101(1) TFEU, the question of what is the best interpretation of the law on restrictions of competition by ‘object’ is reflected on.
Based on the case law of the European Courts, it is argued the more analytical approach provides the best interpretation of the law. This is assessed in relation to the framework of Article 101 TFEU as a whole. Finally, this thesis briefly explores whether such conclusion is then consistent with the optimum function of the object criterion from an enforcement perspective.
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