The notion of ancillary restraints under EU competition

Abstract

The aim of this thesis is to examine the concept of ancillary restraints within the context of EU competition law. The introduction includes a brief exposition of all the relevant elements including Article 101, the Merger Regulation and the Sherman Act. It also incorporates a succinct explanation on the emergence of ancillary restraints, including its bifurcating into commercial and regulatory ancillarity. The first chapter focuses on the three elements that make up a valid ancillary restraint. Case law, and European Guidelines, here, help in organizing these elements and establishing how they were developed through time and are interpreted in practice. The second chapter concentrates on the relationship between Article 101(1) TFEU and Article 101(3) TFEU, and how this affects the analysis required of agreements before they are to be deemed compatible, or not, to the article. A common argument has been that of having the analysis required under Article 101(1) to be tantamount to the US Rule of Reason. This allegation is examined here. Lastly, it deals with how the notions at hand facilitate the idea of having only the actual harmful agreements being deemed incompatible. The third chapter, then, deals with the specific sphere of acquisitions and joint ventures. European Guidelines are analysed as to how several common restraints are to be interpreted. The notion of self-assessment by undertakings, in practice, is examined. Finally, the conclusion aims at connecting the points established in the prior chapters and answering the question of where, under Article 101, ancillary restraints are analysed and up to which level is the analysis permitted.