The only solid and persistent element of the concept of object restrictions is the demand for restrictive application and the question of alternative explanations. It is then up to the executors to establish a plausible link between the theory of damage presented and the agreement in question. On the other hand, is it irrelevant, first, that the parties subjectively intended (see Beef Industry, paragraph 21), or (v) whether they had no commercial interest in restricting competition (see Sumitomo Metal Industries Ltd, paragraphs 45 to 46), (vi) pursued a different and more acceptable objective (see General Motors, cited above, paragraphs 64) and (vii), acted in the public (see Toshiba, paragraph 26), or with the approval of the authorities (see horizontal guidelines, Recital 22). (viii) However, the elements in question should not be regarded as restrictive in their subject matter if they are ancillary (see AG in Groupement des cartes bancaires, para. 56) to an agreement (without problems) which makes it possible to obtain even horizontal price agreements. With respect to Chapter I of the Competition Act 1998, which deals with restrictive agreements, if an organization is found guilty of an agreement restricting competition, the CMA may fine the organization 10 per cent of the organization`s worldwide turnover. This fine can be huge, and it can be crippling, especially for SMEs. Section 1 of the U.S. Sherman Act of 1890 characterizes some treaties as illegal in themselves, while others are subject to a so-called “rule of reason” analysis. If there is an infringement in itself, the parties to the agreement cannot claim that it does not restrict competition: it belongs to a category of agreements that have been classified as restrictive under the law. There is a clear analogy between an agreement which is in itself unlawful under the Sherman Act and an agreement which has as its object competition under Article 101(1). However, there is a substantial difference between Article 1 of the Sherman Law and Article 101 TFEU according to which, even if an agreement has as its object a restriction of competition, that is to say, infringes Article 101(1) as such, the parties may nevertheless seek to justify it under Article 101(3).
That possibility does not exist in US law, since there is no equivalent to Article 101(3) of that system. In this sense, a judgment such as that of the US Supreme Court in the Leegin case (2007), in which it held that the maintenance of minimum prices must be examined on the basis of the principle of reason and not illegally in itself, brings US law into line with that of the EU: it has always been possible to argue that the maintenance of resale prices complies with Article 101, paragraph 3, even if its object is the restriction of competition within the meaning of Article 101(1). The increasing complexity of competition law has considerably prolonged procedures and seriously undermined the objectives of competition policy. Gaps are particularly damaging in the digital economy, but are not limited to a specific sector of the economy. It is time to (…) There is no equivalent to the exemption for anti-competitive agreements. However, a dominant undertaking may demonstrate that, in certain circumstances, it has an objective justification for otherwise abusive conduct. In Société Technique Minière v. Maschinenbau Ulm (1966), the Court held that the term “object or effect” must be read disjunctively; this means that, in cases where an agreement has as its object the restriction of competition, it is not necessary to demonstrate that it has anti-competitive effects: it is only if it is not clear that an agreement has as its object a restriction of competition that it is necessary to examine whether it could have the effect of doing so.
After more than 50 years of EU competition law, one still wonders what constitutes a restriction of competition by object. Like what. B, in Cartes Bancaires v Commission (2014, paragraph 2014, paragraph 2014), the Court held that the Court had already expressed its point of view. 57) stated that the essential legal criterion for determining whether coordination between undertakings has as its competitive object is the finding `that such coordination in itself reveals a sufficient effect on competition`. The term `object` in Article 101 refers to the objective meaning and purpose of the agreement considered in the economic context in which it is applicable; it is not necessary to demonstrate, at the time of conclusion of the agreement, that the parties have a subjective intention to restrict competition. Introduction [Ladies and gentlemen,] It is a pleasure for me to address you this afternoon and thus open the first session of today`s and tomorrow`s seminar on material and procedural developments in EU competition law. This seminar comes at the right time: European competition law (…) Companies involved in anti-competitive behaviour may find that their agreements are unenforceable and risk being fined up to 10% of the group`s global turnover and exposed to possible claims for damages. The term “agreement” is interpreted broadly and includes: (i) any form of legally valid and binding coordination, and (ii) any statement of mutual intent that does not have the characteristics of a legal or formal agreement. Examples include gentlemen`s agreements, mutual declarations, exchange of information on competition-sensitive issues, commitments, situational assessment memoranda and declarations of cooperation. The CMA and industry regulators have broad powers to investigate suspected anti-competitive behaviour. These powers can be used to enter and search commercial and private premises with an arrest warrant in so-called “dawn raids”. They also have the power to impose fines on undertakings found to have infringed competition law.
Criminal sanctions for the most serious violations of competition law are prosecuted by the CMA in collaboration with the UK Serious Fraud Office. Other elements were mentioned in two judgments from 2020 onwards. In budapest Bank, the Court was asked to clarify whether a national agreement on interchange fees was restrictive. In its reply, the Court held (paragraphs 44 and 82 to 83) that an agreement which does not have pro-competitive effects cannot be regarded as restrictive in its subject-matter. Even if the latter were found, the actual effect could still be relevant to the classification. In Generics, which also dealt with the question of when an agreement must be regarded as restricting competition, the Court held, in essence, (paragraphs 82 and 87 to 90) that the agreement served no purpose other than to restrict competition. The Competition and Markets Authority (CMA) is the UK`s non-ministerial government department responsible for maintaining competition in the market and subsequently sanctioning the actions of organisations that engage in anti-competitive practices. .