Infringement of Competition Law by object

Abstract

This Paper examines the concept of infringement by object as contemplated under Article 5 of the Maltese Competition Act, Chapter 379 of the Laws of Malta and Article 101 of the Treaty on the Functioning of the European Union. The paper assesses the development of this notion and determines what is the best interpretation of a restriction by object. Chapter 1 introduces the longstanding orthodoxy that is based on category building of specific restrictions which by their very nature cause a sufficient degree of harm to competition and thus, no effects-analysis is required. It therefore highlights the vital distinction between the object and effects criteria. Chapter 2 delineates that to determine whether a restriction constitutes an infringement by object one must also consider as well the economic and legal context in which the agreement is to be applied. Chapter 3 analyses the present situation where the CJEU seems to be moving towards a wider approach when it assesses the notion of an infringement by object. In fact, it seems to conduct a truncated economic and effects analysis to determine the object criterion and when faced with new restrictions, the CJEU chooses to categorise these new restrictions as infringements by object which in turn widens the definition of this notion. Consequently, the whole exercise of distinguishing between a restriction by object and a restriction by effect is rendered useless. These recent changes question the true definition of an infringement by object. The Paper proposes a way forward, after it considers the analysis which ensued in the previous Chapters. The importance of a clear definition of this concept is required; otherwise competition itself will be prejudiced at the expense of final consumers.