The Objects and Effects of the Restrictions by Object Under Art. 101(1) TFEU: Has the ECJ Solved the Riddle

Abstract

The concept of by object infringements under Art. 101(1) of the TFEU has been a subject of ongoing controversy. Central to this debate are two primary issues: the interpretation of the term object and whether the effects or non-agreement elements in general should be considered when determining it. Should the latter question be answered affirmatively, further complications arise, particularly regarding the scope of the analysis in relation to the effects analysis and the allocation of the evidentiary burden between the parties. EU case law has significantly contributed to this debate, both in support and contradiction. The ECJ has, albeit implicitly, developed a system which seeks to strike a balance between competing interests while considering economic realities. However, the use of ambiguous terminology, inconsistencies in judicial rulings, and a lack of sufficiently clear explanations in certain cases have hindered the literature and national authorities from fully understanding the underlying system. This study aims to address this gap in the literature by providing a comprehensive legal analysis of the concept of by object infringements under Art. 101(1), in light of the framework established by the ECJ. The objective is to contribute to greater legal certainty in this area.