This note seeks to examine the approach proposed by the European Commission in its new Guidelines against the background of the more recent EU Courts’ case law in the area. Firstly, it will give a brief overview of the general trends and principles governing the interpretation of Article 101 TFEU, especially in respect to its structure and to the subject matter of the analysis that ought to be conducted under each of its limbs. Thereafter, it will examine the more recent decisions adopted by the EU Courts and affecting that interpretation in respect to both restrictions ‘by object’ and restraints ‘by effect’. In that context, the note will argue that the position adopted by the Commission in 2004, in as much as it was anchored to the “egalitarian division of labour” between the prohibition clause and the legal exception of Article 101(3) TFEU, whilst compatible with earlier judicial decisions, has become difficult to reconcile with the existing approach adopted by the General Court and the European Court of Justice.
The final part of the note will consider whether, in respect especially to horizontal restraints, the Draft Guidelines have succeeded in increasing the consistency between the EU Courts and the Commission’s approach to Article 101 TFEU. It will be argued that whereas the Commission sought to maintain intact the “dichotomy” existing between restrictions ‘by object’ and ‘by effect’, in accordance with the existing case law, it expressly recognised and articulated the “counterfactual analysis” established by the General Court in O2 as the legal standard applicable to ‘by effect’ restrictions of competition.

This paper seeks to analyse the current trends characterising the interpretation of Article 101 of the Treaty on the functioning of the European Union (hereinafter referred to as Article 101 EU Treaty; formerly Article 81 EC Treaty) in the light of recent decisions of the ECJ. The approach to the reading of this provision has evolved slowly but at the same time quite radically in the past years, due to the adoption of a more “economics-based” approach as well as to the enactment of the Modernisation Regulation, according to which Article 101 is now directly applicable in its entirety by the European Commission, the national competition authorities and the national courts. The paper will investigate the extent to which these two factors have contributed to the emergence of a more “rule of reason” inspired approach to the application of Article 101 (1) and to a change of approach to the scope of the exemption clause contained in Article 101(3) of the EU Treaty.

This paper seeks to analyse the issues emerging from the imposition of certain antitrust remedies, such as the obligation to grant intellectual property licenses regarding key inventions covered by patent or copyright and to stipulate contracts with other firms, including competitors, as a means to remedy the consequences of antitrust infringements. It will consider the extent to which Article 7 remedies can be reconciled with other important tenets of the market economy, such as the freedom to contract and the right to peacefully enjoy one’s possessions.

The chapter discusses the procedural and institutional features of the EU competition enforcement framework, as well as investigating institutional performance mechanisms and due process questions.

This paper seeks to analyse the implications of the proposal to confer to the General Court jurisdiction to hear appeals against decisions of the domestic courts dealing with private antitrust enforcement claims. First, it will consider the question of whether the need to uphold the consistency and uniformity of EU competition law, especially on account of the increasing importance of domestic courts in the application of these rules, resulting from the Modernisation Regulation, justifies the introduction of a “specialised” jurisdiction in this area. Thereafter, the paper will examine the question of whether granting an “appellate” jurisdiction to the General Court against domestic judgments is compatible with the existing principles governing the judicial architecture of the EU, in respect to both the jurisdiction enjoyed by the Luxembourg Courts and the relationship existing between them and the domestic courts. It will be concluded that although the proposal is not inconsistent with the genesis of the General Court, and may indeed be justified by the need to uphold the unity and consistency of the EU competition rules, it raises a number of difficulties both in respect to its compatibility with the nature of the relationship existing between domestic and EU courts, and enshrined in the Treaties, and as regards its consistency with the “limited” nature of the jurisdiction enjoyed in direct actions. Thus, it will be suggested that a less radically, albeit perhaps just as effective proposal, could lie in conferring to the General Court the power to hear preliminary references, as envisaged by Article 256(3) TFEU, since it would remain compatible with the nature of the relationship existing between the domestic courts and the Luxembourg judiciary and would also find a legal basis in the Treaty.