How appreciable is object? The de minimis doctrine and Case C-226/11 Expedia Inc v Autorité de la concurrence

Abstract:

The judgment in Expedia threw into doubt the nature of the relationship between the object concept under Article 101(1) TFEU and appreciable effects by the suggestion that the de minimis doctrine is not applicable to the object criterion at all. It has subsequently been proposed that any quantitative component of the object criterion is redundant.

This article scrutinises the relationship between the object criterion and the de minimis doctrine in the light of that judgment. It considers, first, whether restrictions by object should be deemed automatically appreciable and, secondly, the appropriateness of the link made by the CJEU between restrictions by object and the effect on trade requirement. Finding that the CJEU did not in fact advance a new position in law, this article concludes that what appears at first sight to be a simplifying of the law by the CJEU instead belies the complexity of the issues at hand.