The good news for those who believe in a meaningful impact assessment is that this approach has been clearly rejected by the Court. However, subjective intention may be a relevant factor in assessing whether the subject-matter of an agreement is anti-competitive (Cartes Bancaires, paragraph 54). The concept of restriction of competition by object must be interpreted strictly (Cartes Bancaires, paragraph 58). In deciding whether an agreement has competition as its object, `account must be taken of the content of the provisions [of the agreement], its objectives and the economic and legal framework within which it forms part. In order to determine that context, account must also be taken of the nature of the goods or services concerned and of the actual operating and structural conditions of the market or markets concerned` (Cartes Bancaires, paragraph 53). Again, the Court held that these factors were not sufficient to demonstrate the anti-competitive effect. Monopolies and oligopolies are often accused of anti-competitive practices and sometimes found guilty. Anti-competitive incentives can be particularly pronounced when a company`s majority shareholders hold equally large shares in competitors in the company`s industry. [18] For this reason, mergers are often reviewed by government regulators to avoid restricting competition in a sector.
Although anti-competitive practices often enrich those who practice them, it is widely accepted that they have a negative impact on the economy as a whole, putting competing businesses and consumers at a disadvantage who are unable to avoid their effects, resulting in significant social costs. For these reasons, most countries have competition laws to prevent anti-competitive practices and state regulators that support the enforcement of these laws. We have been hearing about the impact-based approach for over 15 years. The impact-based approach can be found in documents published by the Commission, in documents published for the Commission, in documents published by Commission officials and is discussed at numerous conferences and publications. If we say that every competitive disadvantage is an anti-competitive effect, it is safe to assume that just about every practice has a negative impact on competition. Think about it: potentially anti-competitive practices, by definition, put competitors at a competitive disadvantage. That`s why we investigate them in the first place. The Court has made it clear that a squeeze on margins is not in itself sufficient to demonstrate an anti-competitive effect.
This point would be confirmed in TeliaSonera. If an agreement does not restrict competition by object, it is necessary to examine whether it has restrictive effects on competition. Actual and potential effects must be taken into account. In other words, the agreement is likely to have anti-competitive effects. In the case of effective restrictions of competition, there is no presumption of anti-competitive effects. For an agreement to be restrictive with effect, it must affect actual or potential competition to such an extent that negative effects on prices, production, innovation or the diversity or quality of goods and services can be expected on the relevant market with sufficient probability. Such negative effects must be felt. The prohibition rule laid down in Article 81(1) shall not apply where the anti-competitive effects found are negligible. This test reflects the economic approach taken by the Commission. The prohibition laid down in Article 81(1) shall apply only if, on the basis of an appropriate market analysis, it can be concluded that the agreement is likely to have anti-competitive effects on the market. For such a finding, it is not sufficient that the parties` market shares exceed the thresholds set out in the Commission`s de minimis notice. Agreements covered by the safe harbour rules of the Block Exemption Regulations may fall under Article 81(1), but this is not necessarily the case.
In addition, the fact that an agreement is not covered by the Safe Harbour of a block exemption because of the market shares of the parties constitutes, in itself, an insufficient basis for determining whether the agreement falls within the scope of Article 81(1) or does not fulfil the conditions of Article 81(3). an individual assessment of the likely impact of the agreement is necessary. » © European Commission A merger with a digital platform can have unprecedented anti-competitive effects, posing challenges to Japan`s Fair Trade Commission (JFTC). This article examines three cases of digital platform mergers examined by the JFTC, namely Ultmarc/M3, ZHD (SoftBank)/LINE and (…) The Opinion of Advocate General Kokott in T-Mobile (2009) contains an interesting analysis of why Article 101(1) distinguishes between restrictions on object and effect. First, `the classification of certain types of agreements as restrictive of competition makes good use of the resources of the competition authorities and the judicial system` (T-Mobile, paragraph 43). For example, the fact that a competition authority does not have to prove that a horizontal price agreement has negative economic effects relieving part of the burden it would otherwise bear. Second, the Advocate General pointed out that the existence of restrictions on subject matter `creates legal certainty and enables all market participants to adapt their conduct accordingly` (T-Mobile, paragraph 43), and added that, while the concept of restriction by object must not be interpreted excessively broadly, it must not be interpreted so restrictively as to deprive it of its effectiveness (T-Mobile Opinion, paragraph 44). Thirdly, it pointed out that, just as a law prohibiting persons from driving under the influence of alcohol does not require the conviction that the driver has caused an accident, that is to say, proof of an effect, Article 101(1) likewise prohibits certain agreements which have as their object the restriction of competition, irrespective of whether: if they have an adverse effect on the market on a case-by-case basis (T-Mobile Opinion, paragraph 47); such agreements are therefore only permitted if the parties can demonstrate that they lead to economic efficiency gains of the type referred to in Article 101(3) and that a fair proportion of those efficiency gains are passed on to consumers. .