On September 11 2014 the European Court of Justice (ECJ) reiterated that the notion of restriction of competition 'by object' must be strictly interpreted.
Case law and decision-making practice uphold that certain types of collusive behaviour, such as those leading to horizontal price-fixing by cartels, are so likely to have a negative impact on the price, quantity or quality of goods or services that there is no need to prove they have had an actual effect on the market for the purposes of prohibiting and fining thereof. This type of behaviour is considered a restriction of competition 'by object'.
In 2002 the Groupement de cartes bancaires, created by the main French banks, adopted pricing measures that were applicable to certain categories of member. The General Court, confirming the decision that the commission handed down in 2007, had classified these pricing measures as a decision by an association of undertakings which restricted competition by its object, as it hindered the competition of new entrants on the market for the issue of payment cards in France.
The ECJ has condemned this reasoning, criticising the General Council for demonstrating that the measures in question were likely to restrict competition – for example, by restricting members subject to certain pricing measures from competing on the issuing market with members that were not subject to the same pricing measures.
According to the ECJ, the General Court should have provided evidence of how this restriction of competition was sufficiently harmful to be classified as a restriction 'by object'. In order to do so, the wording, objectives and economic and legal context should have been considered.
A restriction 'by object' can be established only if such an analysis makes it unnecessary to examine the actual effects of the practice in question. By expressly recommending a strict interpretation of the notion of restriction 'by object', the ECJ could rekindle debate on the classification of certain practices as restrictions 'by object', in particular vertical practices, which have hitherto been forbidden per se without their effects on the market being demonstrated.
Emmanuelle van den Broucke
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