EU Competition Law Devours Its Children: The Proliferation of Anti-Competitive Object and the Problem of False Positives

Abstract

Abstract In the last decade, EU competition law reached a major turning point in its history. Anti-competitive object became an elusive and unpredictable rule, which boosts the risk of false positives and has a significant chilling effect. This article analyses this metamorphosis and the social damages it is causing, and proposes an alternative conception. The article demonstrates that the emerging new concept of anti-competitive object erroneously conflates ‘contextual analysis’, which has been part of the object-inquiry from the outset, and ‘effects-analysis’, which has no role to play here. It submits that both doctrinal and policy reasons confirm that anti-competitive object should be a category-building principle of ‘judicial rule-making’ (‘definition of the definition’) and not applicable to individual arrangements directly.