Restriction by Object: A Restriction Based Purely on Experience or Also on Effects?

Sammanfattning: Article 101 TFEU prohibits agreements between undertakings that restrict competition either by object or effect. Restricting competition by object or effect are alternative conditions. Problematically, both the concept of a restriction by object and its relation to restrictions by effect are obscure. The purpose of this thesis is to elucidate the applicability of restrictions by object, in means of answering whether an agreement incapable of having restrictive effects can be restrictive by object. A legal doctrinal method and a textual, contextual, and teleological interpretation are adopted. From examining the requirements for finding a restriction by object, this thesis discerns that only one requirement exists. Namely, a disputed agreement must, based on experience, be subsumed under a by object type of collusion. By object types of collusion arise from experience, by the clustering of anti-competitive collisions based on common traits (common denominators). Agreements meeting the common denominators of a by object type of collusion can be subsumed under that type unless featuring contextual anomalies that adduce reasonable doubt to the experience that agreements featuring the common denominators entail anti-competitive effects. The requirement includes no assessment of actual or potential effects in casu. For the assessment of whether an agreement is restrictive by object, the responsible competition authority needs to consider and prove only the circumstances necessary for meeting the common denominators of a by object type of collusion. Subsequently, it is for the defendant to invoke arguments adducing reasonable doubt as to reliance on experience in casu. The thesis concludes that an agreement incapable of restricting competition can in principle be restrictive by object. However, while no assessment of effects in casu is relevant, such an agreement would only unlikely be classified as a by object type of collusion, to begin with.