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Article 101 TFEU and market integration

Ibáñez Colomo, Pablo (2016) Article 101 TFEU and market integration. Journal of Competition Law and Economics, 12 (4). pp. 749-779. ISSN 1744-6414

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Identification Number: 10.1093/joclec/nhw027

Abstract

Market integration is an objective of Article 101 TFEU. As a result, agreements aimed at partitioning national markets are in principle restrictive of competition by object. The case law on this point has been consistent since Consten-Grundig. Making sense of it, however, remains a challenge. The purpose of this piece is to show, first, how the methodological approach followed by the Court of Justice changes when market integration considerations are at stake. Secondly, it explains why and when restrictions on cross-border trade have been found not to restrict competition by object within the meaning of Article 101(1) TFEU. An agreement aimed at partitioning national markets is not as such contrary to Article 101(1) TFEU if the analysis of the counterfactual reveals that it does not restrict inter-brand and/or intra-brand competition that would have existed in its absence. It is possible to think of three scenarios in this regard: (i) an agreement may be objectively necessary to achieve the aims sought by the parties; (ii) a clause may be objectively necessary for an agreement and (iii) competition is precluded by the underlying regulatory context (as is the case, in particular, when the exercise of intellectual property rights is at stake).

Item Type: Article
Official URL: http://jcle.oxfordjournals.org/
Additional Information: © 2016 The Author
Divisions: Law
Subjects: H Social Sciences > HF Commerce
J Political Science > JN Political institutions (Europe)
J Political Science > JX International law
JEL classification: K - Law and Economics > K2 - Regulation and Business Law > K21 - Antitrust Law
L - Industrial Organization > L4 - Antitrust Issues and Policies > L42 - Vertical Restraints; Resale Price Maintenance; Quantity Discounts
L - Industrial Organization > L8 - Industry Studies: Services > L82 - Entertainment; Media (Performing Arts, Visual Arts, Broadcasting, Publishing, etc.)
L - Industrial Organization > L8 - Industry Studies: Services > L86 - Information and Internet Services; Computer Software
O - Economic Development, Technological Change, and Growth > O3 - Technological Change; Research and Development > O34 - Intellectual Property Rights: National and International Issues
Sets: Departments > Law
Date Deposited: 12 May 2016 11:20
Last Modified: 20 Feb 2019 11:41
URI: http://eprints.lse.ac.uk/id/eprint/66502

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