Effects analysis under Article 101 TFEU
Produced in partnership with Cooley (UK) LLP

The following Competition practice note produced in partnership with Cooley (UK) LLP provides comprehensive and up to date legal information covering:

  • Effects analysis under Article 101 TFEU
  • Cartes Bancaire and object agreements
  • Principles of effects-based analysis
  • Effects-based analyses under Article 101(1) TFEU in practice
  • Horizontal and vertical agreements
  • The counter-factual
  • Analytical methods for assessing the counter-factual
  • Effects-based analyses under Article 101(3) TFEU
  • A more effects-based approach in the future?

Effects analysis under Article 101 TFEU

Article 101(1) TFEU prohibits agreements and concerted practices which may affect trade between EU Member States and which may have the object or effect of preventing, restricting or distorting competition. While the distinction between the two categories of infringement has become rather blurred, in general, object infringements arise from conduct that is inherently anti-competitive and is hence at the more serious end of the scale. In such cases, there is no need for a competition authority or claimant to prove an actual effect on competition, since this is presumed.

In contrast, agreements that are less obviously anti-competitive require analysis of their actual effects before being condemned under competition law. Any negative effect on competition must be appreciable to be caught by Article 101 TFEU.

Any effects analysis requires the consideration of an appropriate counter-factual, since it is not possible to estimate the level of any restriction of competition without considering how competition would develop in the absence of the agreement in question. Assuming that the Commission continues to show a willingness to conduct effects-based analyses, it is likely that more detailed disputes will arise relating to the appropriate methodology for assessing the effects of an agreement, including identification of the appropriate counter-factual and data assessment methodology to adopt. It may become necessary to apply a probability assessment, involving the identification of

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