Left Behind by Modernisation? Restrictions by Object Under Article 101(1)

Introduction:

"This paper focuses on the steps that the Commission has taken to “modernise” Article 101 and, in particular, on the impact that the process has had on the treatment of “object”, or “hardcore”, restraints. It commences in Section B by briefly analysing the Commission’s initial formalistic approach to Article 101, why reform was necessary and how it occurred. It notes that, despite the significant strides taken, the modernisation process has had little impact on the formalistic treatment of object (or hardcore) restraints and, indeed, may be perceived as having made it even more risky for firms to incorporate such restraints into their agreements. Section C then considers whether the elements of Article 101 in fact require such a formalistic approach to be taken to all object restraints and, if not, in what circumstances the elements provide sufficient flexibility to allow the “effects” of such restraints to be analysed. In Section D some conclusions are drawn."