The Object Box: Law, Policy or Myth?

"Historically, one of the most seldom considered aspects of Article 101(1) of the Treaty on the Functioning of the European Union (TFEU), indeed of EU competition law more generally, has been the concept of agreements whose “object” is to restrict competition. Most commentators have been willing to accept Professor Whish’s depiction: the “object box”. in his terms, the object box comprises a limited class of “particularly pernicious” agreements that are considered by law to have as their object the restriction of competition.  Impliedly, restrictions of competition by object are akin to a form of per se offence as understood within the context of section 1 of the Sherman Act 1890. Particular restrictions that fall within the impugned category are therefore automatically seen as having the object of restricting competition under Article 101(1) TFEU. As such, they involve an “obvious” infringement of Article 101(1) TFEU. In light of this depiction, Whish considers it important to know which agreements can be “classified” as having as their object the restriction of competition."

"In Section B, it will discuss the “orthodox approach” to restrictions by object (which encompasses the object box concept). Section C will then examine the case law of the Community Courts to determine whether the object box is indeed reflective of the case law or just elements of it. Two key approaches adopted by the Community Courts to the object criterion will be considered: those cases that support the “orthodox approach” and, conversely, those that support an alternative “more analytical approach” to object. The current stance of the Court of Justice, which arguably is a hybrid of the two approaches, will also be discussed. Section D will briefly assess the complex issue of legal presumptions in light of the case law. Finally, this article will conclude that the object box does not accurately depict the law. Rather, it is a reflection of the Commission’s policy approach to the object criterion as demonstrated in its Article 81(3) guidelines."