“By object” restrictions pursuant to Article 101(1) TFEU: a clear matter or a mess, and a critical analysis of the court’s judgement in Expedia?

Abstract:

A lot has been written on “effect analysis” with respect to the application of the competition law provisions, namely Articles 101(1) and 102 of the Treaty on the Functioning of the European Union (TFEU). This piece focusses on the delineation of object and effect infringements according to Article 101(1) TFEU in particular considering the respective extent of economic analysis required under each of the concepts, as it is well established that object restrictions cannot be identified in the abstract, that is, a certain analysis of the actual circumstances is required. The piece aims to analyse the existing framework for the establishment of object restrictions identifying where to draw the line between the concepts of “object” and “effect” restrictions. Put differently, how much “effect” or economic analysis withstands the concept of “by object” restrictions without running the risk to overlap or “mingle” with the concept of restrictive effects? Furthermore, aiming to draw an overall picture of the existing framework of object restrictions, the piece also sheds light on the Courts judgement in Expedia, excluding by object restrictions from the De Minimis presumption.