The shift to an effects-based approach has brought within reach coherence in the application of Articles 101 and 102, ensuring a predictable and effective policy that systematically protects competition in the interest of consumers Under Article 101, avoiding an overly wide definition of what constitute by object restrictions and the blurring of the distinction between by object and by effect restrictions is the main challenge for achieving coherence. The challenge is to ensure that individual restrictions are not defined as by object simply because in a particular market, the negative effects are obvious and/or the parties’ intention is manifestly to restrict competition. A well-functioning European Competition Network (ECN) and detailed, widely supported enforcement guidelines can help to avoid this tendency. The main challenge for coherence in the application of Article 102 is the possible creation or re-creation of a ‘soft by object category’: conduct and restrictions which are not treated as by object below the level of dominance but which become so once applied by a dominant firm. Establishing such a category would undermine coherence not only within Article 102 but also between the application of Articles 101 and 102.While case law may not always progress along the most logical route, the overall development seems still in the direction of a coherent effects-based approach.
World Competition