The last two decades have seen significant changes in the law of restrictive agreements, which exacerbated the half-century long debate about the optimal analytical framework. The concept of anticompetitive object has been remolded and new categories of condemnable agreements emerged. Competition law is facing new challenges in digital markets and has to respond to the criticism that it is indifferent to general societal values.
The research project examines the key conceptual issues of restrictive agreements by means of doctrinal, comparative and economics analysis. It engages in both positivist (doctrinal) and evaluative (normative) analysis and addresses the key elements of competition analysis, i.e.
- What makes agreements anti-competitive by object and what is the essential difference between them and agreements anti-competitive by effect.
- How is it possible to distinguish the two types? How is the effects-analysis structured, how can the risk of false positives/negatives be minimized by means of presumptions, the allocation of the burden of proof and the use of a sliding-scale approach?
- What makes an agreement anti-competitive and what is the difference between the general prohibition of restrictive agreements (Art 101(1) TFEU), and the efficiency benefits included in the exemption (Art 101(3) TFEU)? May Art 101(3) TFEU accommodate non-economic societal values?
In terms of normative analysis, the research project demonstrates that, as a sign of doctrinal malfunction, anticompetitive object became an elusive and unpredictable rule, which permits competition authorities and courts to deny the right to an effects-analysis, if they find the arrangement anticompetitive at first sight. The emerging new approach boosts the risk of false positives by allowing courts to condemn complex market practices quickly, without looking into the circumstances, and has a significant chilling effect.
One of the central structural questions of Article 101 TFEU is the division of work between paragraph (1) and (3). It is generally accepted that an agreement violates the general prohibition if it has negative effects on prices, output etc., but may be exempted, if it has positive effects on prices, output etc. This is, however, a contradictory proposition because if the agreement has no negative effects, it should not violate the general prohibition in the first place. The research demonstrates that Article 101(1) TFEU centers on the competitive process (rivalry), while Article 101(3) TFEU centers around productive efficiency. The structure of Article 101 TFEU, if properly construed, minimizes the risks of false positives and false negatives, because it allocates the burden of proof according to the agreement’s probable effects on consumer welfare.