Restrictions ‘by object’ after Generics, Lundbeck, and Budapest Bank: are we any wiser now?

Abstract

‘Restrictions “By Object” After Generics, Lundbeck, and Budapest Bank: Are We Any Wiser Now?’ summarizes the CJEU’s jurisprudence on the question when an agreement or a concerted practice between undertakings restricts competition ‘by object’ and when ‘by effect’, Article 101(1) TFEU. It turns out that there are few certainties in this area. Instead, there is a bewildering array of standards for assessing the consequences of agreements on the relevant market. Time and again, it is unclear how ‘abstract’ or ‘concrete’ the assessment has to be. Not much more clarity comes from the recent judgments in Generics, Lundbeck, and Budapest Bank on patent settlement agreements and price fixing, respectively. Nevertheless, they contain the elements of a simple and comprehensive test that dispenses with the complications that have built up in the case law.