By Object Restrictions Pursuant To Article 101 (1) Tfeu

European Competition Journal
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“By object” restrictions pursuant to Article 101(1)

TFEU: a clear matter or a mess, and a critical
analysis of the court's judgement in Expedia?
Bernadette Zelger
To cite this article: Bernadette Zelger (2017) “By object” restrictions pursuant to Article 101(1)
TFEU: a clear matter or a mess, and a critical analysis of the court's judgement in Expedia?,
European Competition Journal, 13:2-3, 356-389, DOI: 10.1080/17441056.2017.1408247
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EUROPEAN COMPETITION JOURNAL, 2017
VOL. 13, NOS. 2–3, 356–389
https://doi.org/10.1080/17441056.2017.1408247
“By object” restrictions pursuant to Article 101(1)

TFEU: a clear matter or a mess, and a critical analysis
of the court’s judgement in Expedia?
Bernadette Zelgera,b
a
Magistra iuris, Department of Law, Leopold-Franzens-University of Innsbruck, Innsbruck,
Austria; bLLM in Competition Law, School of Law, Queen Mary University of London, London,
UK
ABSTRACT
A lot has been written on “effect analysis” with respect to the application of
the competition law provisions, namely Articles 101(1) and 102 of the Treaty on
the Functioning of the European Union (TFEU). This piece focusses on the
delineation of object and effect infringements according to Article 101(1) TFEU in
particular considering the respective extent of economic analysis required under
each of the concepts, as it is well established that object restrictions cannot be
identified in the abstract, that is, a certain analysis of the actual circumstances is
required. The piece aims to analyse the existing framework for the establishment
of object restrictions identifying where to draw the line between the concepts of
“object” and “effect” restrictions. Put differently, how much “effect” or economic
analysis withstands the concept of “by object” restrictions without running the
risk to overlap or “mingle” with the concept of restrictive effects? Furthermore,
aiming to draw an overall picture of the existing framework of object restrictions,
the piece also sheds light on the Courts judgement in Expedia, excluding by
object restrictions from the De Minimis presumption.
ARTICLE HISTORY Received 18 October 2017; Accepted 20 November 2017
KEYWORDS Article 101(1) TFEU and object restrictions; effect analysis and object restrictions; Expedia
and De Minimis and object restrictions; appreciable effect on competition; appreciability and object
restrictions
1. Introduction
Article 101(1) of the Treaty on the Functioning of the European Union
(“TFEU”) prohibits agreements, decisions by associations of undertakings
and concerted practices which may affect trade between Member States
and have as their object or effect the prevention, restriction or distortion
of competition within the internal market.1
CONTACT Bernadette Zelger bernadette.zelger@gmail.com

1
For the purpose of this paper the term ‘restriction’ shall cover all variations mentioned in Article 101(1)
TFEU, namely prevention, restriction and distortion of competition within the internal market.
© 2017 Informa UK Limited, trading as Taylor & Francis Group
EUROPEAN COMPETITION JOURNAL 357
The Treaties do not give any definition of the criteria set out in Article
101(1) TFEU, that is, they do not provide an answer to what should be
understood as a restriction “by object” or “by effect”. Therefore, these fun-
damental concepts of Article 101(1) TFEU have been defined by the Euro-
pean Courts from the very beginning and are still highly debated
nowadays.2
This piece is twofold and will first focus on “by object” restrictions.
In light of the respective case law of the European Courts the frame-
work within which such object restrictions are to be established will
first be analysed, considering where to draw the line between the con-
cepts of “object” and “effect” restrictions, and how much effect analy-
sis is required and “tolerable” as far as object restrictions are
concerned. Therefore, it will be analysed whether object restrictions
can easily be identified and whether a clear cut between the concepts
of “object” and “effect” restrictions is easily possible or rather difficult
to make. It will be shown that the existing framework in which object
restrictions are to be established is – to a certain extent – a flexible (i.e.
economic) rather than a formalistic one, taking into account not only
the mere clauses of an agreement or a practice separated from the
reality in which they occur, but also considering the legal and econ-
omic framework within which the respective agreement or respective
practice is de facto operated. However, the concept of object restric-
tions is to be interpreted restrictively.3 Therefore, in light of the exist-
ing case law (i.e. the European Court of Justice’s [“ECJ”] ruling in
T-Mobile4 and Allianz Hungaria5 as well as its shift in Cartes Ban-
caires6), it will be shown that there exists a certain tension between
the economic approach of the establishment of an object restriction
at the one hand, and the fact that the concept of restrictions of com-
petition by object should be interpreted restrictively on the other
2
eg Commission Decision of 9 July 2014, on appeal Cases T-691/14 etc Servier v Commission, pending;
General Court Decision of 8 September 2016 (T-472/13), on appeal Cases C-591/16 H. Lundbeck and
Lundbeck v Commission, pending. See also eg James Killick and Jeremy Jordan, ‘Cartes Bancaires: A Revo-
lution or a Reminder of Old Principles We Should Never Have Forgotten?’, [2014] Competition Policy
International <https://www.competitionpolicyinternational.com/cartes-bancaires-a-revolution-or-a-
reminder-of-old-principles-we-should-never-have-forgotten/> accessed 30 June 2017; Renato Nazzini
and Ali Nikpay, ‘Object Restrictions and Two-sided Markets in EU Competition Law after Cartes Bancaires’
(Autumn 2014) 10 Competition Policy International, <https://www.competitionpolicyinternational.com/
assets/Uploads/Autumn2014NazziniNikpay.pdf> accessed 30 June 2017.
3
Case C-67/13 P Groupement des Cartes Bancaires [2014] ECLI:EU:C:2014:2204.
4
Case C-8/08 T-Mobile Netherlands BV v Raad van Beestuur van de Nederlandse Mededingingsautoriteit
[2009] ECR I-4529, para 45 (T-Mobile).
5
Case C-32/11 Allianz Hungária [2013] ECLI:EU:C:2013:160 (Allianz Hungária).
6
n 3.
358 B. ZELGER
hand. It seems that the “economic analysis” regarding the concept of

object restrictions is confined to that extent where it runs the risk to
overlap or “mingle”7 with the concept of restrictive effects, which
requires an extensive analysis of the market in which an agreement
or practice is implemented. Finally – regarding the first part of this
piece – it will be concluded that the concept of object restrictions
after Cartes Bancaires is rather clear and the ECJ’s approach of a
restrictive rather than an extensive “object box” is a gratifying one.
The second part will then consider restrictions “by object” and
their relationship to the concept of appreciability. Thereby, special
attention will be paid to the ECJ’s judgement in Expedia8 also consid-
ering earlier cases of the ECJ, such as Völk,9 in which the ECJ had,
for the first time, established the concept of appreciability with
respect to restrictions of competition.10 It will be argued that
Expedia, by explicitly stating that object restrictions are deemed to
be appreciable, and therefore cannot be exempted from the appli-
cation of Article 101(1) TFEU being subject to the European Com-
mission’s De Minimis Notice11 might have clarified a disputed
topic. However, in light of the underlying principles of object restric-
tions and their limited and confined receptiveness regarding “effect
analysis”, the outcome of Expedia was not revolutionary, but rather
of clarifying nature. In the light of Cartes Bancaires where the ECJ
stated that the concept of object restrictions is to be interpreted
restrictively, it will be argued that Expedia (at a different level of
assessment) seems to consistently prove and follow the “trend” not
to expand the concept of object restrictions, that is, not to vest the
concept of object restrictions with too much of effect analysis
(which seemed to be the trend after the ECJ’s rulings in, that is, T-
Mobile, Pierre Fabre,12 Allianz Hungária being subject to criticism).
Thus, it seems sound to presume an appreciable effect in case of
an object restriction, thereby excluding it from the scope of the De
Minimis Notice altogether.
7
T-Mobile (n 4) Opinion of AG Kokott para 45.
8
Case 226/11 Expedia ECLI:EU:C:2012:795 (Expedia).
9
Case 5/69 Völk v Vervaecke [1969] ECR 295 (Völk).
10
ibid para 7.
11
Commission Notice on agreements of minor importance which do not appreciably restrict competition
under Article 101(1) of the Treaty on the Functioning of the European Union (De Minimis Notice) [2014]
OJ C291/1.
12
Case C-439/09 Pierre Fabre [2011] ECR I-9419 (Pierre Fabre).
2. Restrictions of competition
2.1. Restrictions by “object” or “effect”
2.1.1. Two alternative criteria
The wording of Article 101(1) TFEU seems to be clear on the question
whether an agreement must have both, a restrictive object and a restrictive
effect or whether one of the latter would suffice for an agreement to be
subject to Article 101(1) TFEU. The two concepts are clearly read as
alternatives. This has been stressed by the ECJ for the first time in
Societé Technique Minière (STM),13 where it explicitly held that object
and effect “are not cumulative but alternative requirements, indicated
by the conjunction ‘or’ […]”.14 Furthermore, although there is no hierar-
chy of the two concepts of object and effect restrictions with respect to the
wording of Article 101(1) TFEU, such order could be derived from the
Court of Justice’s ruling in STM, where the Court stipulates that
where an analysis of the said clauses does not reveal the effect on competition to
be sufficiently deleterious,15 the consequences of the agreement should then be
considered, and for it to be caught by the prohibition it is then necessary to find
that those factors are present, which show that competition has in fact been pre-
vented or restricted or distorted to an appreciable extent.16
Therefore, an agreement will firstly be assessed in light of a possible object

to restrict competition. Only if such a finding cannot be successfully estab-
lished, effect analysis will be considered in a second step.
2.1.2. The general distinction of the two concepts and its practical
importance
2.1.2.1. Two concepts – establishing a difference. The core difference
between the two concepts is the extent to which an analysis of the
actual effects of the alleged anticompetitive measure is required. This
leads to significant differences in how “object” and “effect” cases are prac-
tically dealt with (e.g. regarding the evidence required or the burden of
proof).
The distinction lies within the nature of the two concepts: whereas the
concept of agreements having an anticompetitive effect pursues a “result-
orientated” approach, the concept of restrictions by object follows a
13
Case 56/65 Societé Technique Minière v Maschinenbau Ulm [1966] ECR 235 (STM).
14
STM (n 13) 249.
15
To justify an object finding.
16
STM (n 13) 249.
360 B. ZELGER
“conduct-orientated” approach. With respect to the former, behaviour

needs to be assessed in light of the given circumstances and with
respect to its actual effects. Regarding the latter however, the nature of
such conduct-oriented approach is that certain conduct is prohibited
without any consideration of the effects of the specific conduct on compe-
tition, because it is considered being very likely to harm, that is, restrict
competition. Therefore, where an agreement has as its object the restric-
tion of competition it is not necessary to prove actual anticompetitive
effects.17 In other words, the establishment of anticompetitive effects is
only necessary if a restriction by object of the agreement is not settled.
The essential criterion in this respect is whether the agreement “[such
coordination] reveals in itself a sufficient degree of harm to compe-
tition”.18 Therefore, as a first step, the terms and conditions of an
agreement are scrutinized in order to determine whether the purpose or
object of an agreement can be said to be the restriction of competition.
Furthermore, also the economic context in which the agreement is to be
applied must be considered.19 Moreover, a subjective intention of the
respective parties of the agreement to actually restrict competition is not
required,20 but may nevertheless be a considerable factor when determin-
ing whether an agreement is anticompetitive by object.21 (For further
details regarding the establishment of an “object-finding”, please see
below under 2.2)
2.1.2.2. Two concepts – their practical importance. The distinction of the

two concepts leads to a significant difference regarding the required evi-
dence, as an agreement which is qualified as restrictive by object, does
not require further analysis of its actual effects. Therefore, no evidence
needs to be collected to prove anticompetitive effects, rather such effects
are presumed. This presumption of negative effects leads to the agree-
ments being automatically void pursuant to Article 101(2) TFEU, unless
economic efficiencies in accordance with Article 101(3) TFEU can be
claimed successfully.
17
STM (n 13) 249; T-Mobile (n 7) para 30; Richard Whish and David Bailey, Competition Law (8th edn Oxford
University Press 2015) 123.
18
Groupement des Cartes Bancaires (n 3) para 57.
19
ibid.
20
Cases 29/83 and 80/93 Compagnie Royale Asturienne des Mines SA and Rheinzinc GmbH v Commission
[1984] ECR 1979, paras 25–26.
21
Allianz Hungária (n 5) para 37; Groupement des Cartes Bancaires (n 3) para 54; also see Odudu ‘Interpret-
ing Article 81(1): Object as Subjective Intention’ (2001) 26 El Rev 60; Commission Staff Working Docu-
ment, ‘Guidance on restrictions “by object” for the purpose of defining which agreements may benefit
from the De Minimis Notice’ SWD(2014) 198 final (“Commission’s Guidance on by object restrictions”), 4.
Furthermore, the qualification of an agreement being restrictive by

object or effect is also decisive with respect to the burden of proof, as
the notion of object alleviates the Commission from its burden to prove
anticompetitive effects.22 In principle, there is an obligation of the auth-
ority to demonstrate an infringement of Article 101(1) TFEU by the
parties to an agreement. The presumption that an agreement does so,
by finding an object restriction of competition, leads to a shift of the
burden of proof to the undertakings being party to the agreement. They
then have to demonstrate pro-competitive efficiencies, that is, they have
to prove that the procompetitive effects of the agreement outweigh the
anticompetitive ones within the scope of Article 101(3) TFEU; an exercise
which, to the present day, has not been successful in case an agreement
was scrutinized by the European Courts and considered being restrictive
by object. As a consequence, it is furthermore evident that proceedings
concerning “effect-type” agreements are usually longer in terms of dur-
ation and create higher costs, due to the necessity to collect evidence to
prove actual effects. For that reason, it is likely and inherent to the position
of competition authorities, that they prefer the finding of an object restric-
tion as no actual anticompetitive effect, by conducting a full effect analysis,
must be proved.23 However, inherent to the position of private undertak-
ings, their preference is usually the opposite.
Another point concerning the practical importance of the distinction of
the two concepts of object and effect restrictions worth mentioning is that
object proceedings pursue a more formalistic and pragmatic approach
inherent to the exclusion of considering actual effects. Therefore, the
fact that, for example, a cartel has not been implemented does not
change the way in which it is analysed,24 that is, the analysis remains
the same as if the cartel had in fact taken place. This might lead to the
(arguably peculiar) situation where measures considered being restrictive
by object might be prohibited despite lacking any anticompetitive effect at
all. Although with respect to genuine cartels, such as price fixing agree-
ments, for example, a lack of anticompetitive effects seems rather unlikely,
it is not ruled out by economists that such agreements might nevertheless
22
As stipulated in Article 2 of Council Regulation (EC) 1/2003 on the Implementation of the Rules on Com-
petition Laid Down in Articles 81 [101] and 82 [102] of the Treaty [2003] OJ L001 (Regulation 1/2003)
recognizing well-established case law; see also eg Cases C-501/06 P etc Glaxo Smith Kline [2009] ECR
I-9291 paras 78–88 (Glaxo Smith Kline).
23
Similar eg Angela Ortega González, ‘Restrictions by Object and the Appreciability Test: The Expedia Case,
a Surprising Judgment or a Simple Clarification?’ (2013) 34 ECLR 457.
24
Case C-407/04 P Dalmine v Commission [2007] ECR I-829.
362 B. ZELGER
be beneficial,25 an approach which has been acknowledged by the Com-

mission.26 However, the benefits of cartel agreements are considered
being relatively rare.27
For the sake of completeness, the last point to be mentioned in this
respect is the fact that object restrictions are excluded from the benefit
granted by the Commission’s De Minimis Notice28 to practices which lack
an appreciable restrictive effect. (For further details regarding object restric-
tions and the de minimis exception, please see below under 4.)
2.1.3. Restrictions by “object” and Article 101(3) TFEU

In principle, there are no types of agreements which are, as a matter of law,
excluded from the ambit of Article 101(3) TFEU.29 Therefore both, object
as well as effect restrictions might theoretically benefit from the exemption
provision in the Treaty. This general possibility to justify object restric-
tions according to Article 101(3) TFEU has been stressed by the Court
of Justice in several rulings.30 However, as mentioned earlier, with
respect to object restrictions a decision of the European Courts deciding
upon an exemption in accordance with Article 101(3) TFEU has not
been issued to date.
However, there exist individual exemptions for agreements considered
being restrictive by object, granted by the Commission31 under the old
regime of notification before the implementation of Regulation 1/
2003.32 In its decision in REIMS II,33 for example, the Commission
granted individual exemption to a price fixing agreement between most
of the public postal operators in Europe having “unusual character-
istics”.34 In CECED35 individual exemption was granted due to environ-
mental reasons. In this case an agreement between producers of
washing machines to promote the production of energy efficient
25
F.M. Scherer and D.R. Ross, ‘Industrial Market Structure and Economic Performance’ (3rd edn Houghton
Mifflin Co, 1990) 335–39.
26
Visa International – Multilateral Interchange Fee (Case No COMP/29.373) Commission Decision 2002/914/
EC [2002] OJ L318/17 para 79.
27
David Bailey, ‘Restrictions of Competition by Object under Article 101 TFEU’ (2012) 49 CMLR 567.
28
De Minimis Notice (n 11).
29
See eg Case T-185/00 and other, Métropole Télévision SA (M6) [2002] ECR II-3805 para 85.
30
Case C-209/07 Beef Industry Development Society [2008] ECR I-8637; Glaxo Smith Kline (n 22); Pierre Fabre
(n 12).
31
eg REIMS II (Case No IV/36.748) Commission Decision 1999/695/EC [1999] OJ L275/17; CECED (Case No
IV.F.1/36.718.) Commission Decision 2000/475/EC [1999] OJ L 187/47; Visa International – Multilateral
Interchange Fee (n 26).
32
Regulation 1/2003 (n 22).
33
REIMS II (n 31).
34
ibid para 65.
35
CECED (n 31).
washing machines by ceasing to produce inefficient ones, was considered

being restrictive by object. However, the respective agreement was capable
to lead to benefits to individual users as well as the environment in
general, and was therefore justified under 101(3) TFEU. Another
example provides the Commission’s exemption decision in Visa Inter-
national – Multilateral Interchange Fee36 concerning a “multilateral inter-
change fee” agreed upon “acquiring” and “issuing” banks within the Visa
card system. Furthermore, exemptions have been granted with respect to
the air transport sector, concerning restrictive agreements between airlines
in relation to their cooperation on flight routes (e.g. scheduling, market-
ing, pricing, etc.).37
Nevertheless, there is a common tenor of the Commission,38 that it is
rather unlikely for object restrictions to meet the criteria as set out in
Article 101(3) TFEU.
2.2. Restrictions “by object” – where we start
2.2.1. General comment

As mentioned earlier39 the notion of object pursues a conduct-oriented
approach by prohibiting certain behaviour, which is considered very
likely to restrict competition ex ante, without any consideration of its
actual effects. At the one hand, such an approach is considered providing
(i) legal certainty (as it aims to provide a quite clear type of conduct which
can ex ante be considered restrictive to competition), (ii) deterrence of
anti-competitive conduct and (iii) procedural economy by relieving com-
petition authorities of the need to conduct a complex and time-consuming
assessment of market impacts.40 At the other hand, such formalistic and
inflexible approach might lead to a wrong assessment in cases where
measures qualified as object restrictions do in fact not have any negative
and restrictive impact on competition at all. However, such “false”
outcome could still be exempted according to Article 101(3) TFEU. In
the following section, it will be shown how the notion of object restrictions
has been developed and might have shifted over the years, finally conclud-
ing on a possible status quo.
36
Visa International – Multilateral Interchange Fee (n 26).
37
eg Société Air France/Alitalia Linee Aeree Italiane (CASE COMP/A.38284/D2) Commission Decision 2004/
841/EC [2000] OJ L362/17; British Airways/American Airlines/Iberia (CASE COMP/39.596) Commission
Decision of 14 July 2010.
38
Commission Notice, Guidelines on the application of Article 81(3) [101(3)] of the Treaty [2004] OJ C101/
08 para 46 (Art 101(3) Guidelines).
39
Point 2.1.2 above.
40
Groupement des Cartes Bancaires (n 3) Opinion of AG Wahl, para 35.
364 B. ZELGER
2.2.2. Establishing a restriction of competition “by object”

2.2.2.1. Where to start?
2.2.2.1.1. Established concepts. In principle, all types of agreements, no
matter whether horizontal or vertical in nature, may qualify as restrictions
by object.41 In this respect, the types of restrictions do of course differ.
According to the case-law it is clear that, in order to establish an infringe-
ment by object, agreements or practices must have a “sufficiently deleter-
ious effect on competition”,42 “by their very nature be injurious to the
proper functioning of normal competition”43 or “reveal sufficient degree
of harm to competition”.44 Furthermore, in European Night Services, for
example, it seems that the General Court went even further stating that
an effect analysis was only necessary in case an agreement did not
contain “obvious restrictions of competition such as price-fixing,
market-sharing or the control of outlets”.45 Therefore, where behaviour
and practices are considered being very likely to harm competition, a
rebuttable presumption of their illegality exists.
These various formulations brought up the idea of object restrictions
having “net effects”,46 a concept which has inter alia been inferred from
Advocate General Wahl’s approach in his opinion in Cartes Bancaires47
stressing that, two types of conduct could be identified when establishing
an object restriction: “(i) conduct entailing an inherent risk of a particu-
larly serious harmful effect or (ii) conduct in respect of which it can be
concluded that the unfavourable effects on competition outweigh the
pro-competitive effects”.48 In Pepperkorn’s words, object restrictions
must “generally lead to net negative effects”.49 However, the concept of
“net effects” as proposed by academic voices is rather based on the
second type of behaviour as identified by the Advocate General,50 as the
41
Cases 56 and 58/64 Consten and Grundig [1966] ECR 299; STM (n 13) 249; see also Allianz Hungária (n 5)
paras 44–46.
42
STM (n 13) para 249.
43
T-Mobile (n 7) paras 26–30; Allianz Hungária (n 5) para 33.
44
Glaxo Smith Kline (n 22) para 55.
45
Cases T-374, 375, 384 and 388/94 European Night Services v Commission [1998] ECR II-3141 para 136
(European Night Services) referring to Case T-148/89 Tréfilunion ν Commission [1995] ECR II-1063, para-
graph 109.
46
Sean Paul Brankin, ‘The substantive standard behind the object/effect distinction post-Cartes Bancaires’,
ECLR [2016], 37(9), 381; Luc Pepperkorn, ‘Defining “by object” restrictions, Concurrences [2017] Concur-
rence No 3-2015 para 64; Pablo Ibáñez Colomo and Alfonso Lamadrid de Pablo, ‘On the Notion of
Restriction of Competition: What We Know and What We Don’t Know We Know’ in Damien Gerard,
Massimo Merola and Bernd Meyring (eds), The Notion of Restriction of Competition: Revisiting the Foun-
dations of Antitrust Enforcement in Europe’ (Bruylant 2017) 44.
47
48
ibid.
49
Pepperkorn (n 46) para 64.
50
Brankin (n 46) 381, Pepperkorn (n 46) para 8.
first type of conduct has been criticized to be untenable as the idea that
some restrictions inherently harm competition, in other words do so
“by their nature” is not compelling, because “restrictions of the same
nature may be treated as either ‘by object’ or ‘by effect’, depending on
the wider context”.51 It is the author’s view, however, that the first cat-
egory as identified by Advocate General Wahl does not contravene the
idea of a concept of net effects, as the actual legal and economic context
must be considered with respect to both categories. As will be shown in
the following, it might be true in this respect, that the extent to which a
contextual analysis is required might vary, nevertheless the consideration
of the actual legal and economic context and the facts of a case is in any
case indispensable in order to establish an object restriction.
2.2.2.1.2. How to assess whether an agreement is sufficiently deleterious,
harmful, obvious or injurious by its very nature?. In principal, a good start-
ing point to identify object restrictions is Article 101(1) TFEU itself,
which contains a list of practices which are considered being very
likely to qualify as object restrictions. The restrictions listed, particularly
those concerning price fixing, output restrictions and market sharing in
most cases qualify as object restrictions. However, this might be different
for discrimination and tie-practices as listed under (d) and (e) of Article
101(1) TFEU as the finding of market power is usually a prerequisite for
such practice to qualify as harmful to competition.52 Moreover, the fact
that a practice is not listed in Article 101(1) TFEU does not mean that
the respective conduct is not capable qualifying as restrictive by
object.53 Therefore, it should be stressed, that the list provided in
Article 101(1) TFEU demonstrates good examples but should not be
considered to be complete.
Moreover, the Commission considers restrictions blacklisted as so-
called “hardcore restrictions” in its various policy documents54 being
object restrictions, a view, which has been confirmed by the European
Courts in those “object-cases” which have been litigated in front of the
Courts.55 For that reason, “hardcore restrictions” as determined by the
Commission also serve as examples of infringements by object, but do
not define or limit the extent of object restrictions.56
51
Brankin (n 46) 378.
52
Bailey (n 27) 572.
53
eg certain types of ‘information exchange’ or ‘collusive tendering’.
54
Such as eg Block Exemption Regulations, Notices and Guidelines.
55
Pepperkorn (n 46).
56
Bailey (n 27) 573.
366 B. ZELGER
Furthermore, after the ECJ’s judgement in Expedia,57 the Commission

released “Guidance on restrictions of competition ‘by object’ for the
purpose of defining which agreements may benefit from the De
Minimis Notice”.58 This staff working paper serves another source of
useful guidance, examples and clarity on the notion of object restrictions.
2.2.2.2. Towards a more economic approach?. Academic commentators

have been observing a shift in the analysis of object restrictions during
the years.59 Whereas the initial approach was a formalistic one, the sub-
sequent trend developed by the Commission and the European Courts
requires a more effects-based analysis in order to establish an object
restriction.60 In other words, the categorical approach, or the so called
“object-box” theory as identified by Whish,61 condemning agreements
which have previously been found to restrict competition “by its very
nature”,62 has shifted towards a more “contextual” technique of interpret-
ation also considering the legal an economic context in which an agree-
ment is applied.63 An individual examination therefore seems
indispensable in order to assess whether an agreement has an anticompe-
titive object.64 However, the principle of the categorical approach can still
be found in the Commission’s Article 101(3) Guidelines,65 stressing that a
conduct is considered qualifying as restriction of competition by object in
case experience demonstrates that it is likely to produce negative effects on
the market and jeopardize the objective pursued by the competition
rules.66 Nevertheless, the case law of the ECJ makes it clear, that in
order to determine whether an agreement can be considered being injur-
ious to competition by its very nature “regard must be had, inter alia, to
the content of its provisions, the objectives it seeks to attain and the
57
Expedia (n 8)
58
Commission’s Guidance on by object restrictions (n 21).
59
Damien Gerard, ‘The Effects-Based Approach under Article 101 TFEU and Its Paradoxes: Modernisation at
War With Itself?’ in J. Bourgeois and D. Waelbroeck (eds), Ten Years of Effects-Based Approach in EU Com-
petition Law (Bruylant, 2012) 18.
60
Yi Heng Alvin Sng, ‘The distinction between “object” and “effect” in EU competition law and concerns
after Groupement des cartes bancaires (C-67/13P)’ [2016] ECLR 179.
61
Whish and Bailey (n 17) 125.
62
ibid.
63
ie Cases 96/82 to 102/82, 104/82, 105/82 and 110/82 IAZ International Belgium and Others v Commission
[1983] ECR 3369 (IAZ International); Case C-209/07 Competition Authority v Beef Industry Development
Society Ltd [2008] ECR I-8637 paras 16 and 21 (BIDS); T-Mobile (n 7) para 28; Glaxo Smith Kline (n 22)
para 58.
64
Pierre Fabre (n 12) Opinion of AG Mazák, para 30.
65
Communication from the Commission, Guidelines on the application of Article 81(3) of the Treaty, OJ
[2004] C 101/97 (Art 101(3) Guidelines).
66
Art 101(3) Guidelines (n 65) para 21.
economic and legal context of which it forms a part”.67 Therefore, the

notion of object restrictions is not only limited to restraints where experi-
ence has already proved their likeliness of an anticompetitive effect, but is
also capable of catching agreements whose anticompetitive nature is appar-
ent from the underlying purpose of the agreement and/or the context in
which it operates.68 In other words, as emphasized by Advocate General
Mazák in Pierre Fabre,69 the classification of a behaviour in an earlier
case does “not relieve the Commission or a national competition authority
of the obligation of carrying out an individual assessment of an agree-
ment”,70 a view supported by the ECJ in Javico,71 where distribution agree-
ments containing export bans, which had been held restrictive by object in
earlier cases,72 were considered not to “constitute agreements which, by
their very nature, are prohibited by [Article 101(1)] of the Treaty”.73
2.2.2.3. Spotted – identified object restrictions. With respect to existing

case law the following practices have been held (being very likely) to
qualify as object restrictions:
(a) Horizontal agreements containing provisions regarding price fixing,

market sharing, output restrictions74 (including the removal of
excess capacity as condemned in BIDS75) collective boycott.
(b) Exchange of information capable of removing uncertainty regarding
future pricing behaviour.76
(c) Vertical agreements upon fixed or minimum resale prices (resale price
maintenance - RPM).77
(d) Vertical agreements leading to absolute territorial protection78
(including restrictions on passive sales79)
67
Glaxo Smith Kline (n 22) para 58; BIDS (n 63) paras 16 and 21.
68
Alison Jones, ‘Left Behind Modernisation? Restrictions by Object under Article 81(1)’ (2010) 6 ECJ 655,
657.
69
Pierre Fabre (n 12) Opinion of AG Mazák.
70
ibid para 27.
71
Case C-306/96 Javico International v Yves Saint Laurent [1998] ECR I-1983 para 18 (Javico).
72
eg Case 19/77 Miller v Commission [1978] ECR 131 para 7; Case C-279/87 Tipp-Ex v Commission [1990] ECR
I-261, para 22 (summary publication).
73
ibid para 21.
74
eg European Night Services (n 45) para 136. Also see Art 101(3) Guidelines (n 65) para 21.
75
BIDS (n 63).
76
T-Mobile (n 7); T-587/08 Fresh Del Monte Produce v Commission [2013] ECLI:EU:T:2013:129, paras 294–396
(case has been appealed to the ECJ, Case C-293/13P, not yet decided); also see Art 101(3) Guidelines (n
65) section 2.
77
Case 243/83 SA Binon & Cie v SA Agence et Messageries de la Presse [1985] ECR 2015, para 44.
78
eg Consten and Grundig (n 41).
79
Case C-279/87 Tipp-Ex v Commission [1990] ECR I-261 (Tipp-Ex); Case T-62/89 Volkswagen v Commission
[2000] ECR II-2707 para 178; also see Art 101(3) Guidelines (n 65) para 23.
368 B. ZELGER
(e) Prohibition or limiting of parallel imports80 and export bans.81

(f) Selective distribution agreements absent objective justification
according to the ECJ in Pierre Fabre.82
The above categories of restrictions, which are deemed to likely qualify

as object restrictions, provide an orientation and useful guidance in
order to assess whether an agreement constitutes an object restriction.
However, it is nevertheless indispensable to look at the facts of each
single case.
2.2.2.4. The extent to consider the market context – are there “particular
serious” object restrictions?. Upon a closer look at the identified categories
listed above, it could be argued that different types of agreements seem to
require a different level of context analysis. In other words, one gets the
impression that whereas it is rather “obvious”83 that, for example, price
fixing agreements or market sharing agreements are restrictive by
object, other agreements containing vertical restraints, for example,
require a closer look upon the actual context within which they are
applied. The reason for such a “distinction” might lie in the “recognized
deleteriousness” of a practice from an economic perspective.
2.2.2.4.1. Horizontal agreements and RPM. It is common understanding
that the benefits of, for example, price fixing agreements of all kinds,
especially those in horizontal agreements,84 are in general considered
being relatively rare and very unlikely.85 As mentioned earlier such
practices – if at all – tend to be exempted according to Article 101
(3) TFEU only. The same applies to market sharing or collective
boycott agreements. They are unlikely to (be concluded to) produce
economic efficiencies as their negative effects and/or restrictions are
superior and “hindering” the creation of pro economic effects.86
R&D as well as specialization agreements between competitors,
however, are more likely to create such efficiencies as such
“cooperation in research and development and in the exploitation of
the results is most likely to promote technical and economic
80
Glaxo Smith Kline (n 22) para 58.
81
Miller v Commission (n 72) paras 7 and 18.
82
Case C-439/09 Pierre Fabre Dermo Cosmétique SAS v Président de l’Autorité de la Concurrence and Ministre
de l’Économie, de l’Industrie et de l’Emploi [2011] ECR I-9419, para 39 (Pierre Fabre).
83
European Night Services (n 45) para 136.
84
Bailey (n 27) 567.
85
86
Pepperkorn (n 46) para 8.
progress”.87 Furthermore, their objective aim and purpose is obviously differ-

ent from those of pure market sharing or collective boycott agreements.
The European Courts’ view of price fixing in vertical agreements is a
similar deleterious one. However, it should be mentioned in this respect
that RPM generally tends to be a controversial topic from an economic
perspective. Standard neoclassical economic theory, for example, allows
different efficiency justifications since RPM can be a solution to problems,
such as, for example, the so-called “free rider problem”.88 In other words,
with respect to RPM, opposed to horizontal price fixing arrangements,
economists have not as commonly agreed upon its harmfulness to compe-
tition. Therefore, from a competition law perspective regarding object and
effect restrictions, it could be argued to withdraw RPM from the group of
object restrictions and assign them to the category of effect infringements.
This has happened in other competition law systems such as, for example,
the US, where such practices are not presumed to be illegal per se, but
rather reviewed under the so called “rule of reason”.89 The US Supreme
Court abolished the nearly century-old per se rule against RPM established
in 191190 in a judgement in 2007.91 Since then, RPM has been judged
under the “rule of reason”, requiring the courts to weigh all the relevant
circumstances of a case, that is, weighing pro and anti-competitive
effects against each other, in order to assess whether a practice unreason-
ably restraints trade. Nevertheless, with respect to well-established case
law of the European Courts, it is clear, that RPM is considered being an
object restriction of competition.92 Furthermore, tendencies to shift this
view regarding RPM and align it with the US approach seem very unlikely
as the European Courts and the Commission do not seem to engage in the
discussion of the principles in the way the US Supreme Court did. On the
87
Commission Regulation (EU) No 1217/2010 on the application of Article 101(3) of the Treaty on the Func-
tioning of the European Union to certain categories of research and development agreements [2010] OJ
L335/36 para 8.
88
The free-rider problem describes the problem associated with horizontal externalities between firms
operating on the same level of the value chain. When competitors compete on other levels than
price only, the ‘free rider problem’ might occur. In case of complex technical products, for example,
such products might require extensive pre-sales service that the manufacturer would like retailers to
offer. Such services, however, drive up the price of the product and thereby create incentives for cus-
tomers to get presales service at a particular ‘brick and mortar’ retailer and subsequently purchase online
or at some other retailer not offering this service and therefore offering it for a cheaper price. RPM would
address such problem by eliminating the possibility of undercutting the price of the product by deter-
mining or guaranteeing the retailers a certain margin. With respect to Article 101(1) TFEU this argument
is currently highly raised by undertakings regarding online sales.
89
90
United States Supreme Court, Dr Miles Medicine Co. v John D. Park & Sons, 220 U.S. 373 (1911).
91
United States Supreme Court, Leegin Creative Leather Products, Inc. v PSKS, Inc., 551 U.S. 877 (2007)
(Leegin).
92
eg Case 161/84 Pronuptia de Paris v Schillgalis [1986] ECR 353, para 25.
370 B. ZELGER
contrary, the Commission mirrors in its Guidelines on Vertical

Restraints93 the concerns as raised by the dissenting judges in the US land-
mark decision.94
2.2.2.4.2. Vertical agreements. Vertical agreements such as, for example,
the implementation of a distribution system as well as other practices
that bear the risk to partition the market, seem to require a closer look
upon the actual circumstances. Vertical practices are in general recognized
being less damaging to competition, that is, they are generally considered
being “less harmful than horizontal restraints and may provide substantial
scope for efficiencies”.95 In Consten and Grundig,96 for example, the
infringement of the distribution agreements arose from the fact that absol-
ute territorial protection had been granted by isolating the French market
and sheltering the French distributors from all effective competition. In
STM97 however, the situation was different as parallel imports from distri-
butors in other Member States were still allowed and therefore, the agree-
ments did not confer absolute territorial protection, consequently, they
did not lead to a partitioning of the internal market. Another example
in this respect are export bans, which are in principle considered being
object restrictions98 and even practices supporting an export ban, such
as, for example, systematic reporting and the investigation of parallel
imports by marking the products to identify their origin and the suspen-
sion of supply to prevent parallel imports99 as well as the buying back of
exported products have been held being restrictive by object.100 As men-
tioned earlier, in Javico101 however, distribution agreements containing
export bans were considered not constituting an object restriction, there-
fore requiring a proof of their anticompetitive effects.102
Furthermore, selective distribution agreements are – absent an objec-
tive justification – considered being restrictive by object.103 However, in
this respect the ECJ’s well-established case-law as established in
Metro104 is of significant importance, according to which the organization
93
European Commission, Guidelines on Vertical Restraints [2010] OJ C131/1, para 224 (Vertical Guidelines).
94
Leegin (n 91).
95
Vertical Guidelines (n 93) para 6.
96
n 41.
97
STM (n 13).
98
eg Case 19/77 Miller v Commission [1978] ECR 131 para 7; Tipp-Ex (n 79) para 22 (summary publication).
99
Tretorn (Case No IV/32.948 – IV/34.590) Commission Decision 94/987/EG [1994] OJ L378/45.
100
Case T-43/92 Dunlop Salzenger [1994] ECR II-441.
101
Javico (n 71).
102
ibid para 21.
103
Case C-439/09 Pierre Fabre Dermo Cosmétique SAS v Président de l’Autorité de la Concurrence and Ministre
de l’Économie, de l’Industrie et de l’Emploi [2011] ECR I-9419, para 39 (Pierre Fabre).
104
Case 26/76 Metro v Commission [1977] ECR 1875 (Metro).
of a selective distribution network is considered to fall outside Article 101

(1) TFEU,
provided that resellers are chosen on the basis of objective criteria of a qualitat-
ive nature, relating to the technical qualifications of the reseller and his staff and
the suitability of his trading premises and that such conditions are laid down
uniformly for all potential resellers and are not applied in a discriminatory
fashion.105
Moreover, the criteria laid down shall not go beyond what is necessary.
Furthermore, also the Commission’s Vertical Block Exemption Regu-
lation106 practically provides a safe harbour for a wide range of selective
distribution systems, also covering quantitative distribution systems.107
For that reason, the vast majority of selective distribution systems are ren-
dered lawful and “saved” in practice.
These examples show that a “simplistic” categorical approach or assess-
ment of practices by assigning them to one of the object categories as listed
above without considering the actual facts and circumstances (i.e.
“without considering the actual legal and economic context in which
the agreements are applied”), is not possible. A too formalistic approach
or the establishment on the basis of “purely theoretical considerations”108
would fall short of the concepts as established under Article 101(1) TFEU.
2.2.2.5. In a nutshell – content, object and legal and economic context. In

light of the above, when identifying an object restriction, such analysis is
threefold: it is the content, the object and the legal and economic context of
an agreement which has to be taken into account. Therefore, a contextual
analysis is in principle indispensable in order to establish a restriction by
object. Arguably, there might be cases where a closer look at the actual
facts and circumstances seems to be less important due to a more
obvious character of a conduct being harmful to competition. However,
this argument does not seem compelling as a contextual analysis is
required in any case, cases concerning price fixing as well as vertical
restraints or information exchange. The fact that the context analysis
105
ibid para 20.
106
Commission Regulation (EU) No 330/2010 on the application of Article 101(3) of the Treaty on the Func-
tioning of the European Union to categories of vertical agreements and concerted practices [2010] OJ
L102/1 (Verticals Regulation).
107
Case C-158/11 Auto24 SARL v Jaguar Land Rover France SAS [2012] ECLI:EU:C:2012:351 para 39; per ana-
logiam as the definition of ‘selective distribution system’ in Article 1(1)(f) of the old 2002 Motor Vehicle
Block Exemption Regulation (Commission Regulation 1400/2002) being subject to the Court’s interpret-
ation was identical with the definition in Article 1(1)e of the Verticals Regulation.
108
Consten and Grundig (n 41) Opinion of AG Roemer, 358.
372 B. ZELGER
might take a bit longer with respect to some of the allegedly harmful prac-
tices compared to others does not say anything about its importance,
which is the same in each case. The same principle applies with respect
to effect cases: it is clear that the Commission has to conduct an effects-
analysis in effect cases. However, the fact that in some cases and with
respect to some forms of collusion the effect is proved more easily and
“faster” than in others does not change the fact that an analysis of the
facts is in principle required.
However, the question with respect to object restrictions remains the
extent of the required effect or economic analysis necessary when consid-
ering the actual legal and economic context. Whenever referred to effects
in conjunction with by object restrictions, it shall be clarified at this stage
that “effects” in this respect shall be understood as economic analysis
required when considering the underlying, actual and economic context
of an agreement. “Effects” in this respect are clearly to be distinguished
from the full-effect analysis as required for the establishment of an
effect infringement.
2.2.3. How much “economic analysis” withstands the concept of “by

object” restrictions?
2.2.3.1. Preliminary comment. As mentioned earlier, the notion of object
opposed to effect restrictions is based on a concept similar to the US
approach of “per se” condemnation of certain conduct considered being
very likely to undermine the objectives of the competition provisions
and presumed to be “sufficiently deleterious” to qualify as an object
restriction of competition. In other words, object restrictions have “such
a high potential of negative effects on competition that it is unnecessary
for the purposes of applying Article [101(1)] to demonstrate any actual
effects”.109 Therefore, with respect to object restrictions, “the nature and
purpose of a practice are not determined in the light of its effects”.110
In principle, when establishing an object restriction, factors such as “the
content of the agreements and the objective aims pursued by it”111 should
be taken into account. However, it should be borne in mind that “an
agreement may be regarded as having a restrictive object even if it does
not have the restriction of competition as its sole aim but pursues other
legitimate objectives”.112 Furthermore, in order to establish an object
109
110
Ibáñez Colomo and Lamadrid de Pablo (n 46) 16.
111
112
Case C–551/03 P General Motors v Commission [2006] ECR I–3173 para 64.
restriction, no subjective intention of the parties of the agreement to

restrict competition is required,113 but may nevertheless be taken into
account when determining whether the agreement is anticompetitive by
object.114
Additionally – simply because competition issues in general cannot be
assessed in the abstract only – we have seen that leaving aside the actual
market context is not an option when establishing an object restriction.
Therefore, in order to reach a satisfactory assessment of a conduct in
this respect, it is indispensable to consider the actual circumstances.
This has been emphasized by the ECJ from the very beginning, stressing
that in order to determine whether an agreement can be considered
being injurious to competition by its very nature “regard must be had,
inter alia, to the content of its provisions, the objectives it seeks to
attain and the economic and legal context of which it forms a part”.115
Therefore, there is a common understanding, that object restrictions
cannot be established on a purely hypothetical or abstract basis.
2.2.3.2. Economic extent of the contextual analysis in object cases. With

respect to “effect cases”, it has ever since been clear and stressed by the
ECJ,116 that there is a need for an economic approach. Accordingly,
account shall be taken of “the economic context in which the undertakings
operate, the products and services covered by the agreement and the actual
structure of the market concerned”.117 Furthermore, the definition of the
relevant product and geographic market is a prerequisite to establish
actual or potential effects.118 Moreover, the examination of the market
conditions must comprise not only actual but also potential competition
“in order to ascertain whether […] there are real concrete possibilities
for the undertaking concerned to compete among themselves or for a
new competitor to […] compete with the undertakings already estab-
lished”.119 Therefore, effect cases require a “full-effect analysis”.
In object cases, however, we do at the one hand know that the actual
legal and economic context within which an agreement operates must
113
Cases 29/83 and 80/93 Compagnie Royale Asturienne des Mines SA and Rheinzinc GmbH v Commission
[1984] ECR 1979, paras 25–26.
114
Allianz Hungária (n 5) para 37; Groupement des Cartes Bancaires (n 3) para 54; also see Odudu (n 21);
Commission’s Guidance on by object restrictions (n 21) 4.
115
IAZ International (n 63) para 25; Glaxo Smith Kline (n 22) para 58; BIDS (n 63) paras 16 and 21.
116
STM (n 13) 248.
117
eg European Night Services (n 45) para 136; see also Case C-250/92 Gottrup-Klim ν Dansk Landbrugs Grov-
vareselskab [1994] ECR I-5641 para 31.
118
Case C-234/89 Delimitis ν Henninger Bräu [1991] ECR 1-935 para 16.
119
European Night Services (n 45) paras 136–137.
374 B. ZELGER
be taken into account. To put it differently, a context analysis is required.

At the other hand, the question is whether it is clear cut where to draw the
line between the concept of object restrictions and the extent of “effect”
considerations or economic analysis when carrying out a contextual
analysis.
2.2.3.2.1. T-Mobile and Allianz Hungária – a too economic approach?.
With respect to the case law, especially the judgements in T-Mobile120
and Allianz Hungária,121 the ECJ has been criticized to have brought
the concept of object restrictions too close to an actual effects analysis,
thereby “blurring the boundary between the concepts of restriction by
object or restriction by effect”.122
In its preliminary ruling in T-Mobile, the ECJ had to assess whether the
exchange of confidential information and the coordination of market
conduct of T-Mobile and its competitors, all operating in the mobile
network sector, amounted to a restriction of competition by object. The
Dutch competition authority had imposed fines upon the five mobile
network operators, qualifying the exchange of confidential information
and the coordination of their behaviour as object restriction. The ECJ
first held, that “certain forms of collusion […] can be regarded, by their
very nature, as being injurious to the proper functioning of normal com-
petition”.123 So far, there was nothing new, however, the Court, referring
to Advocate General Kokott’s opinion, continued that “in order for a con-
certed practice to be regarded as having an anti-competitive object, it is
sufficient that it has the potential to have a negative impact on compe-
tition”.124 The Court then further explains that a practice “must simply
be capable in an individual case, having regard to the specific legal and
economic context, of resulting in the prevention, restriction or distortion
of competition within the common market”125 (emphasis added). This
passage, that is, the emphasized wording, was criticized with the argument
that the Court seemed to have broadened the approach to infringements
by object,126 thereby adding to the confusion between the concepts of
object and effect infringements.
120
T-Mobile (n 4).
121
Allianz Hungária (n 5).
122
123
T-Mobile (n 4) para 29.
124
ibid para 31.
125
ibid.
126
Bernd Meyring, ‘T-Mobile: Further Confusion on Information Exchanges Between Competitors: Case C-8/
08 T-Mobile Netherlands and Others [2009] ECR’ (2010) 1 Journal of European Competition Law & Practice
31; also see Bailey (n 27) 589.
In Allianz Hungária the ECJ, after having started with its traditional
approach to establishing object restrictions, namely the necessity of a
restriction being injurious to competition “by its very nature”,127 consid-
ering content, object as well as the legal and economic context (referred to
as “traditional approach” in the following), added that “it is also appropri-
ate to take into consideration the nature of the goods or services affected, as
well as the real conditions of the functioning and structure of the market or
markets in question”128 (emphasis added). Later in the judgement the ECJ
further stated that “the structure of the market, the existence of alternative
channels and their respective importance and the market power of the com-
panies concerned”129 (emphasis added) had to be examined in order to
determine the likelihood of whether “competition on that market would
be eliminated or seriously weakened”,130 in which case the agreements
would also amount to a restriction by object. This preliminary ruling con-
cerned agreements between Hungarian insurance companies and author-
ized dealers operating auto repair shops, whereby the parties agreed upon
(i) the rates applicable to repair services (payable by the insurance compa-
nies) and (ii) the dealers acting as intermediaries for the insurers (offering
insurances to their costumers). Furthermore, the charge for the repair ser-
vices was linked to the number of insurance policies signed. The ruling of
the Court attracted lots of criticism,131 arguing that the new factors,
namely the structure of the market, the existence of alternative channels
and their respective importance and the market power, as listed by the
Court lead to further confusion where to draw the line between the analy-
sis of the legal and economic context with respect to object restrictions
opposed to a full-effect analysis in effect cases. The approach or suggestion
of the Court was criticized being “a hybrid analysis which results in de
facto widening of the object category and blurring of the dividing line
between object and effect analysis”.132
The criticism regarding the Court’s language used in T-Mobile is justi-
fiable when restrictively looking at the wording only. Regarding the ident-
ified concepts as mentioned under 2.2.2.1.1, according to which an
127
Allianz Hungária (n 5) para 33.
128
Allianz Hungária (n 5) para 36.
129
ibid para 48.
130
ibid.
131
Cosmo Graham, ‘Methods for Determining Whether an Agreement Restricts Competition: Comment on
Allianz Hungária’ (2013) 13 ELR 542; Csongor István Nagy, ‘The Distinction Between Anti-competitive
Object and Effect after Allianz: The End of Coherence in Competition Analysis’ (2013) 36 World Compe-
tition 557.
132
Ariel Ezrachi, EU Competition Law: An Analytical Guide to the Leading Cases (5th edn, Bloomsburry 2016)
108.
376 B. ZELGER
agreement must be sufficiently deleterious, harmful, obvious or injurious

by its very nature in order to qualify as object restrictions, it could be
argued however, that the Court’s wording in T-Mobile133 can be “seam-
lessly” brought together with the concepts established, that is, in light of
an overall notion of possible “net effects” (as mentioned above). The
fact that in case of object restrictions actual negative effects are not necess-
ary implies, that the potential of causing them might be sufficient. There-
fore, the “potential to have a negative impact” or as further explained by
the Court the fact that a practice must “be capable […] to result in the pre-
vention, restriction or distortion of competition within the common
market”134 does not seem to be very different from what has been
stated in earlier cases. Furthermore, the criticized wording appears after
the traditional statement of the Court that “certain forms of collusion
[…] can be regarded, by their very nature, as being injurious to the
proper functioning of normal competition”135 and could therefore be
seen as simply “additional” to it. For that reason, the author at the one
hand agrees, that the wording in T-Mobile, when looking at the criticized
paragraphs separately, might not be the most favourable. At the other
hand, however, it seems arguable that the Court in T-Mobile has not
necessarily further mingled the concepts of object and effect infringe-
ments. Furthermore, considering the T-Mobile case as a whole, that is,
the legal and economic context in which the practice occurred, namely
the oligopolistic nature of the market concerned and the exchange of con-
fidential information capable of removing uncertainty regarding future
pricing, the Court’s conclusion qualifying the practice being restrictive
by object seems correct and not surprising.
However, the Court’s ruling in Allianz Hungária indeed seems to have
mingled the concepts of object and effect restrictions as the language used
by the ECJ reminds of the language and principles established in effect-
cases such as, for example, European Night Services, Gottrup-Klim or Deli-
mitis, that is, account shall be taken of “the economic context in which the
undertakings operate, the products and services covered by the agreement
and the actual structure of the market concerned”.136 Furthermore, the
fact that the Court requires an assessment of the market power of the com-
panies concerned furthermore indicates the requirement of a definition of
the relevant product and geographic market, another established
133
‘being capable’.
134
ibid.
135
136
eg European Night Services (n 45) para 136; see also Case Gottrup-Klim (n 117) para 31.
prerequisite for full-effect analysis in effect-cases.137 Furthermore, when

determining the “new factors” to be considered for the establishment of
an object restriction, the Court referred to its ruling in Expedia,138 a jud-
gement dealing with the de minimis doctrine, that is, the necessity of a
competition restriction having an appreciable effect in order to fall
within the ambit of Article 101(1) TFEU. This reference seems misplaced
as the concept of an object restriction and the concept of the necessity of a
competition restriction having an appreciable effect come into play at
different levels of the assessment. The language of the Expedia judgement
should therefore not have been used to “establish the nature of object
analysis”.139
2.2.3.2.2. Cartes Bancaires – a recall of old principles?. In its judgement in
Cartes Bancaires the ECJ seemed to have “back-pedalled” from its debated
approach towards an effect analysis in object cases as taken in T-Mobile
and Allianz Hungária.
The case concerned a bank consortium, managed by several French
banks, which agreed upon price measures such as, for example, member-
ship fees and payment card charges. The amount of the fees and charges
varied between the managing banks, other banks and new members.
In its reasoning, the Court again started with its traditional approach.
Interestingly, the Court then goes on referring and citing some of the
highly debated paragraphs of Allianz Hungária.140 However, in a next
step the Court emphasizes that “the essential legal criterion for ascertain-
ing whether coordination between undertakings involves [such] a restric-
tion of competition ‘by object’ is the finding that such coordination reveals
in itself a sufficient degree of harm to competition” (emphasis added).141
The Court goes then on stressing that the concept of competition restric-
tions by object must be interpreted “restrictively” and that the General
Court had erred in finding the opposite.142 Finally, the ECJ acknowledges
the fact that the GC had set out the reason for the measures in question
being “capable of restricting competition”143 but lacked to “explain how
they reveal a sufficient degree of harm”.144
137
Delimitis (n 118) para 16.
138
Expedia (n 8).
139
Ezrachi (n 132) 108.
140
See above page 26.
141
Groupement des Cartes Bancaires (n 3) para 57.
142
ibid para 58.
143
ibid para 60.
144
ibid.
378 B. ZELGER
The fact that the ECJ emphasized the need of a “restrictive” interpret-
ation of the concept of object restrictions was very welcomed and seemed
to have put an end to the trend of a too extensive approach when estab-
lishing object restrictions.145 Therefore, despite the references made to
Allianz Hungária the Court put forward a narrower approach to the
scope of restrictions by object. Furthermore, some argue146 that the
Court’s approach in Cartes Bancaires has also narrowed the approach as
taken in T-Mobile. Whereas in the latter it was sufficient for a practice
qualifying as restrictive by object in case it had the “potential to have a
negative impact on competition”,147 that is, “simply be capable in an indi-
vidual case” of harming competition, according to Cartes Bancaires an
explanation “on how they reveal a sufficient degree of harm”148 is also
required. However, because of the “additional” nature of the criticized
wording in T-Mobile as argued above (please see para 815) the author
does not agree in this respect. An approach which seems arguably consist-
ent with the Court’s view in Cartes Bancaires: an explanation why an
agreement is considered being an object restriction, in light of the given
circumstances, is always required. In other words, “why” a practice is con-
sidered or presumed being harmful to competition without proving actual
effects has to be answered in all cases, that is, also in case a practice is con-
sidered being sufficiently deleterious, harmful, obvious or injurious by its
very nature. To put it differently “net effects” of a practice cannot only
be claimed, but – considering the legal and economic context – there
must be a reasoning why they are likely to occur.
2.3. Interim conclusion
In light of the above and, that is, the established concepts and principles
developed in the case law, it is the author’s view, that there is more
clarity with respect to object and effect restrictions and the extent of econ-
omic analysis required than presumed at a first glance. The overall picture
drawn is a rather consistent one.
Firstly, it is clear after Cartes Bancaires that the notion of object restric-
tions is to be interpreted restrictively. Secondly, it is well established that
145
Grant Murray, ‘In Search of the Obvious Groupement des cartes bancaires and by Object Infringement
under EU Competition Law’ <https://globalcompliancenews.com/in-search-of-the-obvious-
groupement-des-cartes-bancaires-and-by-object-infringements-under-eu-competition-law/> accessed
5 July 2017.
146
Ezrachi (n 132) 111.
147
148
ibid.
object restrictions must be sufficiently deleterious, harmful, obvious or

injurious by its very nature. These principles could be summed up
under the necessity of an object restriction to have “net negative
effects”. The “traditional approach” of establishing object restrictions con-
sists of considerations of the content and the object of an agreement as
well as the legal and economic context within which it is applied. There-
fore, the content and the object have to be analysed in their actual context
(“contextual analysis”). Firstly, such a contextual analysis is used to
explain why a restriction is considered being very likely to harm compe-
tition, that is, qualifies as object restriction. Secondly, it is different from
an actual effect analysis and does not consist of an in-depth analysis of
the market requiring, for example, market definition as a prerequisite
etc. As law can in general not be applied in the abstract, thus without con-
sidering reality, the contextual analysis of restrictions in order to deter-
mine their likelihood of harming competition seems logical and
inevitable. However, a contextual analysis is different from the extent of
effect analysis as required in Allianz Hungária, where the Court’s language
resembles the language used in effect cases and full-effect analysis. There-
fore, this approach should preferably not be further pursued. Although,
the ECJ referred to the highly disputed paragraphs of the Allianz
Hungária decision in Cartes Bancaires, overall the ECJ seemed to have
narrowed its approach for the establishment of object restrictions with
this latter judgement. However, it remains to be seen and hoped that
the Court will continue abolishing such approach in the future, therefore
rendering Allianz Hungária an exception rather than a rule.
3. The concept of appreciability or the de minimis doctrine

3.1. The concept of appreciability (de minimis doctrine) – its origin
Article 101(1) TFEU does not say anything about the necessity of a restric-
tion having an appreciable effect on competition. This concept, also
known as de minimis doctrine, has rather been developed by the case
law, and was first introduced by the ECJ in Völk.149 The concept of
appreciability ensures, that an agreement falls outside Article 101(1)
TFEU altogether, “where it has only an insignificant effect on the
market, taking into account the weak position which the persons con-
cerned have on the market of the product in question”150 (emphasis
149
Völk (n 9).
150
ibid 302.
380 B. ZELGER
added). In other words, “in order to come with the prohibition imposed by
Article [101], the agreement must affect trade between Member States and
the free play of competition to an appreciable extent”.151 Völk concerned
an exclusive agreement between Mr. Völk, the owner of Erd & Co, a
company manufacturing washing machines and Vervaecke, a Belgian dis-
tributor for household electrical appliances. Erd & Co’s market shares on
the market for the production of washing machines was considered being
0.08% at EU level, 0.2% in Germany and 0.6% of the market in Belgium
and Luxembourg only. For that reason, the Court held that,
an exclusive dealing agreement, even with absolute territorial protection, may
having regard to the weak position of the persons concerned on the market
in the products in question in the area covered by the absolute territorial pro-
tection, escape the prohibition laid down in Article [101(1)].152
Therefore, since Völk it is clear, that a “double appreciability”153 is

required in order for an agreement to fall under Article 101(1) TFEU.
In other words, a practice must at the one hand have an appreciable
effect on trade between Member States, as well as an appreciable effect
on competition itself at the other hand, that is, have the object or effect
of “perceptibly restricting competition”.154 Since Völk, these principles
have been constantly repeated by the Courts.155
3.2. Appreciable effects on competition vs. appreciable effects on

trade between Member States
As we have seen, the concept of appreciability occurs with regards to both
(cumulative) criteria of Article 101(1) TFEU, namely the criterion of a
restrictions of competition as well as the criterion of an effect on trade
between Member States.
It is important to clearly distinguish between the two concepts of an
appreciable effect on competition at the one hand, and an appreciable
effect on trade at the other hand. Whereas the former, also referred to
as “agreements of minor importance”, which are considered not to
appreciably restrict competition, is dealt with by the Commission in its
151
Case 22/71 Béguelin Import Company v G.L. Import Export SA [1971] ECR 949 para 16 (Béguelin Import).
152
Völk (n 9) p 302.
153
154
Case C-70/93 BMW v ALD [1995] ECR I-3439, para 18; Javico (n 71) para 12; Case C-260/07 Pedro IV Ser-
vicios [2009] ECR I-2437, para 68 (Pedro IV Servivios); Expedia (n 8) para 17.
155
eg Béguelin Import (n 151) para 1, Case C-7/95P John Deere v Commission [1998] ECR I-3111, para 77;
Joined Cases C-215/96 and C-216/96 Bagnasco and Others [1999] ECR I-135, para 34; Case C-238/05
Asnef-Equifax and Administración del Estado [2006] ECR I-11125, para 50; Expedia (n 8) para 16.
De Minimis Notice,156 the latter, that is, the necessity of an agreement

having an appreciable effect on trade between Member States, the Com-
mission deals with in its Guidelines on the effect on trade concept.157
With respect to the latter, measures of purely local impact are excluded
from the ambit of Article 101(1) TFEU lacking a minimum level of
cross-border effects within the EU. Put differently, “[t]he effect on trade
criterion confines the scope of application of Articles [101] and [102] to
agreements and practices that are capable of having a minimum level of
cross-border effects within the Community”.158
The most important difference with respect to the policy documents of
the Commission is their application when it comes to object restrictions.
The presumption for agreements being of minor importance, that is,
which are considered not to appreciably restrict competition, as set out
by Commission in its De Minimis Notice only applies to agreements
which have an anticompetitive effect, but not, however, to agreements
which have as their object a restriction of competition.159 Nevertheless,
agreements having an anticompetitive object are in principle capable of
being subject to the presumption as set out in the Guidelines on the
effect on trade concept,160 provided all necessary conditions and require-
ments are met.161
3.3. The de minimis doctrine and the Commission

3.3.1. General remarks
Guidance of the Commission regarding agreements it considers being
likely to qualify as an agreement with only minor importance was first
issued in 1997.162 Since then the Notice published has been revised and
replaced twice.163 Most recently after the Court’s judgement in
Expedia164 clarifying that the presumption as set out in the De Minimis
Notice is not applicable with respect to object restrictions as they cannot
156
De Minimis Notice (n 11).
157
Commission Notice, Guidelines on the effect on trade concept in Article 81 and 82 of the Treaty [2004]
OJ C101/07 (Guidelines on the effect on trade concept).
158
Guidelines on the effect on trade concept (n 157) para 13.
159
A clarification introduced by the Commission after Expedia. See below.
160
n 157.
161
The Guidelines on the effect on trade concept (n 157) set out a negative rebuttable presumption defining
the lack of an appreciable effect on trade between Member States (NAAT-rule) by using combined
thresholds of the undertakings’ market shares and turnover.
162
Commission Notice on agreements of minor importance which do not fall within the meaning of Article
85 (1) of the Treaty establishing the European Community [1997] OJ C 372/13.
163
Firstly, by Notice OJ [2001] C 368/13 and most recently by the De Minimis Notice (n 11).
164
Expedia (n 8).
382 B. ZELGER
be considered as minor, because they have by definition an appreciable

impact on competition. Therefore, the Commission now explicitly states
in its De Minimis Notice, that agreements being restrictive by object
cannot benefit from its “safe harbour”.165 The revised De Minimis
Notice is furthermore accompanied by the Commission’s Guidance on
by object restrictions.166 (For details regarding the Expedia judgement,
please see below.)
3.3.2. Nature of the De Minimis Notice

The main purpose of the De Minimis Notice is to provide guidance and
transparency with respect to the administrative practice of the Commis-
sion in the application of Article 101(1) TFEU.167 The De Minimis
Notice was issued by the Commission “in its capacity as the competition
authority of the European Union”168 and the statements in the Notice
are not legally binding on national courts and authorities as well as they
are of course not binding on the European Courts.169 The Notice rather
mirrors the Commission’s approach only and provides a “safe harbour”
insofar as – by reference to market share thresholds – it indicates circum-
stances in which agreements, which might have an anti-competitive effect,
do nevertheless not constitute an appreciable restriction of competition.
However, the “quantitative definition of ‘appreciable’ given by the Com-
mission is […] no absolute yardstick”.170 Therefore, “[national] auth-
orities are [not in general] prohibited from pursuing anti-competitive
agreements under the market share thresholds set out in the Notice”.171
3.3.3. Content of the De Minimis Notice

According to section II of the De Minimis Notice, agreements between
actual and potential competitors are presumed not to appreciably restrict
competition within the meaning of Article 101(1) of the Treaty and there-
fore benefit from the Notice if the aggregate market share of the parties to
the agreement does not exceed 10% on any of the relevant markets.172
165
De Minimis Notice (n 11) section I point 2.
166
Commission’s Guidance on by object restrictions (n 21).
167
Expedia (n 8) para 28.
168
ibid Opinion of AG Kokott, para 29.
169
De Minimis Notice (n 11) section I point 4 and 6.
170
European Night Services (n 45) para 102.
171
Christopher Brown, ‘The concept of “appreciable restriction of competition” in “object” cases under
Article 101(1) TFEU – AG Kokott in Expedia’, posted October 19, 2012 (eutopia law) <https://
eutopialaw.com/2012/10/19/the-concept-of-appreciable-restriction-of-competition-in-object-cases-
under-article-1011-tfeu-ag-kokott-in-expedia/> accessed 10 July 2017.
172
De Minimis Notice (n 11) section II point 8(a).
Agreements between non-actual and potential competitors benefit from

this presumption if the market share held by each of the parties to the
agreement does not exceed 15% on any of the relevant markets.173
Furthermore, the Commission makes clear that agreements being
restrictive by object cannot benefit from its “safe harbour”.174 In this
respect, it also clarifies that it will not apply the de minimis exception to
restrictions qualified in its various policy documents as hardcore restric-
tions.175 However, in this respect it will be up to the European Courts
to decide if all restrictions qualified by the Commission as hardcore infrin-
gements do indeed qualify as object restriction.176
4. Object restrictions and appreciable effects

4.1. The question in Expedia – appreciability as a side stage?
The case concerned a preliminary reference ruling regarding the legality of
an agreement between Expedia, who was specialized in the sale of travel
via internet and the French train operator SNCF. The case finally
reached the ECJ with a referred question of the Cour de cassation, basically
concerning the application and role of the Commission’s De Minimis
Notice in national proceedings.
The reference made by the Cour de cassation did not directly concern
the concept of appreciability and its relation to object restrictions. The
main concern was rather the role and importance of the De Minimis
Notice and the respective thresholds set out in there with respect to
national proceedings.
As a result, the vast majority of the paragraphs of the decision concern
the nature and legal validity of the De Minimis Notice.177 Actually, the
Court’s statement regarding object restrictions in general consists of two
paragraphs,178 and the relation of the latter to the concept of appreciablity
is literally limited to one paragraph only.179
Furthermore, the ECJ did not say anything about the French Court’s
finding of an object restriction, as there was no room for the Court to
rule on this issue, or with the words of the ECJ, “in proceedings under
173
ibid section II point 8(b).
174
ibid section I point 2.
175
ibid section I point 13.
176
177
In this respect please see above under 3.3.2.
178
Expedia (n 8) para 35 and 36.
179
ibid para 37.
384 B. ZELGER
Article 267 TFEU, which is based on a clear separation of functions

between the national courts and the Court of Justice, any assessment of
the facts in the main proceedings is a matter of the national court”.180
In light of the above, that is, firstly, the fact that we do not know
whether there was indeed an object restriction in Expedia (as the Court
did not rule on this), and secondly, also considering that the concept of
appreciability and object restrictions were rather a side stage, as the
main question referred to the Court concerned the direct application
and legal nature of the De Minimis Notice in national proceedings, one
could arguably rather doubt that this judgement has indeed clarified
and eradicated all questions regarding object restrictions and appreciabil-
ity. Therefore, although the news spread after the release of the judgement
in Expedia gave the impression of the decision being “revolutionary”
finally providing clarification regarding the relationship of object restric-
tions and the concept of appreciability, it is the author’s view, that there
might be still some unanswered questions left.
4.2. Expedia – how to “read” the judgement?
The Court starts its statement concerning object restrictions and the
concept of appreciablity by stressing that “for the purpose of applying
Article 101(1) TFEU, there is no need to take account of the concrete
effects of an agreement once it appears that it has as its object the preven-
tion, restriction or distortion of competition”.181
It goes on emphasizing that, “the distinction between ‘infringements by
object’ and ‘infringements by effect’ arises from the fact that certain forms
of collusion between undertakings can be regarded, by their very nature, as
being injurious to the proper functioning of normal competition”.182
In paragraph 37 of the judgement the ECJ then held the following:
It must therefore be held that an agreement that may affect trade between
Member States and that has an anti-competitive object constitutes, by its
nature and independently of any concrete effect that it may have, an appreci-
able restriction on competition.
This statement of the Court lead to the conclusion of some academic com-
mentators183 that object restrictions are in general and always appreciable
180
ibid para 34.
181
ibid para 35.
182
ibid para 36.
183
Pinar Akman, ‘The Court of Justice’s Expedia Ruling Undermines the Economic Approach by Eliminating
the “de mimimis” Defence in Object Agreements’, Competition Policy Blog <https://competitionpolicy.
on competition (provided they have an appreciable effect on trade

between Member States) and therefore, as a consequence, cannot
benefit from the De Minimis Notice. In this respect, the approach taken
by the Court has been criticized for not being “in line with a modern econ-
omic approach”.184
However, in light of the question referred to the Court and the
overall context of the judgement it could also be argued, that there
should just simply be no “beneficial” presumption for object restric-
tions not having an appreciable effect in case the thresholds of the
De Minimis Notice are not exceeded. In other words, as soon as an
object restriction has been identified, a presumption of the restriction
not having an appreciable effect on competition by enabling it to
benefit from the De Minimis Notice would not be consistent with
the overall concept of object restrictions established, as in case an
object infringement is found, the anticompetitive effects of such prac-
tice are presumed (i.e. opposed to restrictions by effect, object restric-
tions do not require a full-effect analysis or a proof of actual effects).
Thus, it would seem conflicting with the concept of object restrictions,
if the latter were subject to the positive presumption of the De Minimis
Notice. Rather the opposite seems consistent, therefore that such pre-
sumption does not apply to object restrictions. An approach which
could arguably also be the one the ECJ pursued in its judgement in
Expedia. However, such presumption that object restrictions usually
do have an appreciable effect on competition does or should not
mean that they do necessarily have indeed (see below 4.3). Conse-
quently, with respect to the overall concept of object restrictions it
seems consistent, that the latter is not be capable to benefit from the
positive presumption of the De Minimis Notice, that is, to benefit
from its exemption.
4.3. Expedia and Völk – incompatible opposites?

With respect to the judgement in Expedia, the Court has been criticized185
for not having clarified its conclusion in light of what has been
wordpress.com/2013/06/04/the-court-of-justices-expedia-ruling-undermines-the-economic-approach-
by-eliminating-the-de-mimimis-defence-in-object-agreements/> accessed 12 July 2017; Cosmo Graham,
‘Re Thinking the de minimis rules’, Competition Law Blog <http://competitionlawblog.blogspot.co.uk/
2013/07/re-thinking-de-minimis-rules.html> accessed 12 July 2017.
184
Akman (n 182).
185
Gavin Bushell and Melissa Healy, ‘Expedia: The de minimis Notice and “by object” Restrictions’ (2013) 4
Journal of European Competition Law & Practice 225.
386 B. ZELGER
well-established case law since its ruling in Völk186 (concerning an exclu-

sive distribution agreement conferring absolute territorial protection187).
In Völk the question referred by the German Oberlandesgericht (Higher
Court) Munich was “whether, in deciding whether such agreements fall
within the prohibition set out in Article [101(1)] of the Treaty, regard
must be had to the proportion of the market which the grantor controls
or endeavours to obtain in the territory ceded”.188
According to the ECJ’s judgement in Völk, the finding of an object
restriction189 still requires the practice indeed having an appreciable
effect on competition, which in turn means that a practice which lacks
such an effect can fall outside Article 101(1) TFEU.
The Court first elaborated on the necessity of an appreciable effect on
trade between Member States. Further, it went on stressing that “the pro-
hibition in Article [101(1)] is applicable only if the agreement in question
also has as its object or effect the prevention, restriction or distortion of
competition within the Common Market” and that
[t]hose conditions must be understood by reference to the actual circumstances
of the agreement. Consequently, an agreement falls outside the prohibition in
Article 101 when it has only an insignificant effect on the markets, taking
into account the weak position which the persons concerned have on the
market of the product in question.190
Finally, the ECJ then concluded that

an exclusive dealing agreement, even with absolute territorial protection, may,
having regard to the weak position of the persons concerned on the market in
the products in question in the area covered by the absolute protection, escape
the prohibition laid down in Article [101(1)].191
In light if the above, the two decisions, Völk and Expedia do not seem con-
trary to each other. Although, the author does not agree with reading
Expedia in a way that “the [Expedia] ruling is thus best understood […]
as a confirmation that questions related to appreciability should have
been rooted out before determining that an agreement restricts compe-
tition by object”.192 The establishment of an object restriction and the
186
Völk (n 9).
187
For details regarding the facts in Völk please see above under 3.1.
188
Völk (n 9) para 4.
189
As it is clear since Consten and Grunding (n 41) and STM (n 13) that exclusive distribution agreements
conferring absolute territorial protection are considered being object restrictions.
190
Völk (n 9) para 7.
191
ibid.
192
Tjarda van der Vijvera and Stefan Vollering, ‘Understanding appreciability: The European Court of
Justice Reviews Its Journey in Expedia’ (2013) 50 Common Market Law Review 1141.
contextual analysis required in this respect seems different from the ques-
tion whether the practice indeed has an appreciable effect. In the assess-
ment of a practice and its capacity to restrict competition in the way as
prohibited by Article 101(1) TFEU these two questions are located at
different levels. The finding of a restriction by object or effect precedes
the question of whether it has an appreciable effect on competition. It
could therefore be argued that the Court’s rulings in Völk and Expedia
are rather complementary to each other and fit well in the overall
concept of object restrictions and the extent to which this concept “with-
stands” an analysis of actual effects. Whereas in Völk the Court made
clear, that an exception from Article 101(1) TFEU lacking an appreciable
effect on competition is possible also with respect to object restrictions. In
Expedia, the Court contributed to a consistent approach regarding the
actual effect analysis which is – notwithstanding the analysis of the
actual economic circumstances – not required in object cases, that is, by
clarifying that the positive presumption of not having an appreciable
effect (as set out in the De Minimis Notice) should not apply with
respect to object restrictions. Due to the fact that, as a matter of principle,
no analysis of actual effects is required but rather presumed as soon as an
object restriction is established, it would be inconsistent to then let the
identified practice benefit from the presumption that such (presumed)
effect is however presumed not being appreciable. In other words, to
presume that a practice presumably having an anticompetitive effect is
in the next step not appreciable, that is, does not have an appreciable
effect on competition, seems to bear a contradiction in itself. Furthermore,
the language used in Expedia, namely that agreements which have an
anticompetitive object do “by [their] nature”193 constitute an appreciable
effect (or an appreciable restriction of competition), reminds of the
language used for identifying an infringement by object, namely the neces-
sity of a restriction being injurious to competition “by its very nature”.194
This might also indicate that the deleterious nature of object restrictions in
a first step leads to a (rebuttable) presumption of anticompetitive effects as
well as their appreciability. Therefore, the Court’s statement in Expedia
concerning object restrictions and the concept of appreciability should
not be understood in the abstract but rather in the overall context of
the judgement, especially considering the question referred to it by the
French Cour de cassation.
193
Expedia (n 8) para 37.
194
eg Allianz Hungária (n 5) para 33; see above page 13.
388 B. ZELGER
In light of the above, the question whether an object restriction will ever
be capable of not having an appreciable effect is reasonable. Such excep-
tions might probably be similarly rare as exceptions of object restrictions
according to Article 101(3) TFEU. Nevertheless, as Völk shows, it is not
impossible. Furthermore, subsequent cases such us, for example, Pedro
IV Servicios,195 a preliminary ruling of the ECJ concerning RPM, as well
as the General Court’s ruling in Ziegler v Commission196 concerning a
cartel whose participants were engaged in price fixing, customer sharing
and bid rigging, seem to be in line with this view. Whereas in the
former the ECJ held that
although the fixing of a retail price constitutes a restriction of competition
expressly provided for in Article [101(1)(a) TFEU], it causes that agreement
to be caught by the prohibition set out in that provision only where all the
other conditions for applying that provision are met, that is to say, that the
object or effect of the agreement is perceptibly to restrict competition within
the common market and that it is capable of affecting trade between
Member States197 (emphasis added).
In Ziegler v Commission, the General Court held that “Article [101(1)

TFEU] is not applicable if the effect of a restrictive practice on intra–Com-
munity trade or on competition is not ‘appreciable’”198 (emphasis added)
and that an “agreement escapes the prohibition laid down in Article [101
(1) TFEU] if it restricts competition or affects trade between Member
States only insignificantly”.199
5. Status quo – a sound picture?

In summary, firstly it can be said that object restrictions are no clear
matter which can be established in the abstract. However, they are no
mess either, as there does exist a sound legal framework for the establish-
ment of an object restriction. Competition law or law in general cannot be
applied in the abstract. Thus, we have seen that the establishment of “by
object” restrictions cannot be free of any conceptual and economic analy-
sis as it is considered being necessary “to assess the agreement’s purpose
and the context in which it functions” (as cited in various judgements,
for example, T-Mobile). An analysis of the actual circumstances, that is,
the legal and economic context, in every single case is therefore
195
Pedro IV Servicios (n 154).
196
Case T–199/08 Ziegler v Commission [2011] ECR II-03507 (Ziegler v Commission).
197
Pedro IV Servicios (n 154) para 83.
198
Ziegler v Commission (n 195) para 44.
199
ibid (with references to further case law).
indispensable. The existing case law, Comission Guidance Papers and the
developed framework provide good guidance in this respect.
Furthermore, it is the author’s view that Expedia brought no change,
but rather lead to further clarification regarding the relation of object
restrictions and the concept of appreciability. The judgement contributes
to a sound overall concept of object restrictions and the approach taken by
the Court in Expedia seems reasonable with respect to the existing legal
framework. In other words, the Court’s judgement in Expedia provides
a consistent contribution to the extent of economic analysis required in
case of object restrictions. What the Court has done in Expedia is exclud-
ing object restrictions from the safe harbour of the De Minimis Notice.
This does not necessarily mean that individual exemptions are not poss-
ible at all. In this respect Völk as well as subsequent cases200 could be
seen as support of this view showing that an exception is indeed possible.
Admittedly, such exception would very likely not be the rule, but rather
the exception; similar to the fact that object restrictions are capable of ben-
efiting from Article 101(3) TFEU but – as experience shows – the vast
majority of object restrictions will never do.
Disclosure statement
No potential conflict of interest was reported by the author.
200
eg Pedro IV Servicios (n 154) and Ziegler v Commission (n 195); see page 45.

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European Competition Journal

ISSN: 1744-1056 (Print) 1757-8396 (Online) Journal homepage: http://www.tandfonline.com/loi/recj20

“By object” restrictions pursuant to Article 101(1)

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“By object” restrictions pursuant to Article 101(1)

ARTICLE HISTORY Received 18 October 2017; Accepted 20 November 2017

CONTACT Bernadette Zelger bernadette.zelger@gmail.com

hand. It seems that the “economic analysis” regarding the concept of

Therefore, an agreement will ﬁrstly be assessed in light of a possible object

“conduct-orientated” approach. With respect to the former, behaviour

2.1.2.2. Two concepts – their practical importance. The distinction of the

Furthermore, the qualification of an agreement being restrictive by

be beneficial,25 an approach which has been acknowledged by the Com-

2.1.3. Restrictions by “object” and Article 101(3) TFEU

washing machines by ceasing to produce inefficient ones, was considered

2.2. Restrictions “by object” – where we start

2.2.1. General comment

2.2.2. Establishing a restriction of competition “by object”

Furthermore, after the ECJ’s judgement in Expedia,57 the Commission

2.2.2.2. Towards a more economic approach?. Academic commentators

economic and legal context of which it forms a part”.67 Therefore, the

2.2.2.3. Spotted – identified object restrictions. With respect to existing

(a) Horizontal agreements containing provisions regarding price fixing,

(e) Prohibition or limiting of parallel imports80 and export bans.81

The above categories of restrictions, which are deemed to likely qualify

progress”.87 Furthermore, their objective aim and purpose is obviously differ-

contrary, the Commission mirrors in its Guidelines on Vertical

of a selective distribution network is considered to fall outside Article 101

2.2.2.5. In a nutshell – content, object and legal and economic context. In

2.2.3. How much “economic analysis” withstands the concept of “by

restriction, no subjective intention of the parties of the agreement to

2.2.3.2. Economic extent of the contextual analysis in object cases. With

be taken into account. To put it differently, a context analysis is required.

agreement must be sufficiently deleterious, harmful, obvious or injurious

prerequisite for full-effect analysis in effect-cases.137 Furthermore, when

2.3. Interim conclusion

object restrictions must be sufficiently deleterious, harmful, obvious or

3. The concept of appreciability or the de minimis doctrine

Therefore, since Völk it is clear, that a “double appreciability”153 is

3.2. Appreciable effects on competition vs. appreciable effects on

De Minimis Notice,156 the latter, that is, the necessity of an agreement

3.3. The de minimis doctrine and the Commission

be considered as minor, because they have by definition an appreciable

3.3.2. Nature of the De Minimis Notice

3.3.3. Content of the De Minimis Notice

Agreements between non-actual and potential competitors beneﬁt from

4. Object restrictions and appreciable effects

Article 267 TFEU, which is based on a clear separation of functions

4.2. Expedia – how to “read” the judgement?

on competition (provided they have an appreciable effect on trade

4.3. Expedia and Völk – incompatible opposites?

well-established case law since its ruling in Völk186 (concerning an exclu-

Finally, the ECJ then concluded that

In Ziegler v Commission, the General Court held that “Article [101(1)

5. Status quo – a sound picture?

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