COMPETITION • EUROPEAN LAW • RESTRICTIVE AGREEMENTS
Article 101(1) TFEU prohibits agreements for which “the object or effect” is to restrict competition. The alternative, i.e. object or effect, has a twofold meaning and is interpreted both procedurally and substantively. Firstly, it is not necessary for the supervisory authorities to wait for a restrictive action to have produced its effect to trigger the prohibition and this rule applies regardless of the nature of the practice at issue. Secondly, in certain cases, it can have a specific meaning: some practices are judged so anticompetitive that they justify to be prohibited per se, i.e. automatically. Consequently, it is irrelevant whether the cartel leads to concrete effects and whether any assessment of those effects is undertaken: exemptions are in principle ruled out.
The EU authorities do not always distinguish between anticompetitive object and effect and often emphasize their alternative nature. At times, they appear to have established an order of priority between the two. When the object of the agreement does not have a sufficient degree of harmfulness to competition, taking into consideration the economic context in which it is applied, the assessment of its validity is carried out based on its effects. That order of priority is, however, not absolute and all depends on the methods used: when the supervisory authorities resort to inductive evidence, as is generally but not necessarily, the case in matters of concerted practices, they establish the restrictive effects before even establishing the existence of concertation; but, when the anticompetitive actions are set down in writing within a contract, they use a deductive method and examine first – and sometimes only – the terms of the agreement.
To determine whether an agreement is caught by Article 101(1) TFEU, regard must be had to the content of that agreement and the objective aims pursued by it. An agreement may be deemed to have a restrictive object even if the restriction of competition is not its sole objective and it pursues other legitimate aims. The anticompetitive object of an agreement is determined with regard to the objective circumstances and does not depend on the subjective intentions of the parties. For a concerted practice to be anticompetitive, it must simply be capable, having regard to the specific legal and economic context, of resulting in the prevention, restriction or distortion of competition within the internal market. Whether and to what extent such anticompetitive effects result can only be of relevance for determining the amount of any fine and assessing any claim for damages. An anticompetitive object may be present without there being any intent to harm competition. The demonstration of anticompetitive intent does not, therefore, require that the parties know that they are infringing Article 101, provided that they could not have been unaware of the anticompetitive nature of their conduct. The parties must have willingly formed the agreement but there is no requirement to have intended to adversely affect competition. It suffices that they were not unaware of the anticompetitive character of their behavior. In order to determine that an anticompetitive objective does indeed exist, the EU Court will principally examine the goals of the agreement as can be construed from its clauses. It is not necessary to find that the agreement deprives final consumers of effective competition insofar as Article 101 TFEU aims to protect not only the interests of competitors or of consumers but also the structure of the market.
