Article 101 Tfeu And Market Integration

Market integration is an objective of Article 101 TFEU. As a result, agreementsaimed at partitioning national markets are in principlerestrictive of competition by object. The case law on this point has beenconsistent since Consten-Grundig. Making sense of it, however,remains a challenge. The purpose of this article is to first show how themethodological approach followed by the Court of Justice changes when marketintegration considerations are at stake. Second, this article explains why andwhen restrictions on cross-border trade have been found not to restrictcompetition by object within the meaning of Article 101(1) TFEU. An agreementaimed at partitioning national markets is not as such contrary to Article 101(1)TFEU if the analysis of the counterfactual reveals that it does not restrictinter-brand and/or intra-brand competition that would have existed in itsabsence. It is possible to think of three scenarios in this regard: (1) anagreement may be objectively necessary to achieve the aims sought by theparties; (2) a clause may be objectively necessary for an agreement; and (3)competition is precluded by the underlying regulatory context (as is the case,in particular, when the exercise of intellectual property rights is atstake).