Agreements anticompetitive by effect

This chapter explores and analyses the concept of anticompetitive effect in terms of rationale, frame of analysis and methodology. Section 5.1 demonstrates that the identification of anticompetitive effects calls for a substantive analysis. Section 5.2 presents this substantive analysis. Section 5.3 addresses the CJEU’s judicial mantra that Article 101(1) contains no rule of reason and contrasts this with the substantive analysis presented in Section 5.2. Section 5.4 inquires whether the effects-analysis may accommodate a sliding scale and whether a truncated effects-analysis can meet the requirements of Article 101(1). Section 5.5 presents two partial methodologies used in effects-analysis: appreciability and ancillarity. Section 5.6 inquires whether public interest considerations may be taken into account under Article 101(1) to assess undertakings’ self-regulation. Section 5.7 provides an outlook to US antitrust law. Section 5.8 summarizes this chapter’s assessment and proposals.