The Enforcement of Article 101 TFEU: What Has Happened To The Effects Analysis?

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This paper critically examines the European Commission’s commitment to employing a more “effects-based” approach to enforcing Article 101TFEU. It finds that, while the Commission has developed an impressive theoretical framework for assessing the effects of agreements on competition, there has in fact been very little effects analysis in its decisional practice since 2005. In the overwhelming majority of cases, the anticompetitive effects of prohibited agreements have instead been presumed on the basis of the “object rule”. This paper explores possible reasons for this development, and examines whether alternative forms of enforcement are addressing the void that the focus on object restrictions has left. It concludes that Article 101 is currently not being enforced effectively against restrictions of competition by effect.