OVERVIEW AND CRITICAL ANALYSIS OF THE MAIN DEVELOPMENTS IN EUROPEAN ANTITRUST PRACTICE AND CASE LAW

Abstract

Over the years, both the European Commission and the national competition authorities have played a crucial role in the enforcement of Articles 101 and 102 TFEU. In the last year, the network of competition authorities has become a multi-center, united network supporting innovative ideas and legal principles. In contrast, European Courts, at least during the last year, appear to have been over formalistic in their approach, all too often in line with the Commission, paying more attention to procedural rather than substantive issues. In the last year, the European Commission and the European Courts have analyzed many important cases in different economic sectors in relation to the application of Articles 101 and 102 TFEU, which have raised many complex legal and factual issues. In some cases the European Commission and the European Courts were confronted with new questions, while the outcome of other cases helped to clarify long-lasting debates. The analysis of decision-making practice and case law highlights some major issues in recent antitrust enforcement, namely: (i) the boundaries of the notion of restriction “by object”; (ii) the enhanced role of economic analysis in the assessment of unilateral exclusionary conduct, in line with the European Commission’s Guidance Paper on Article 102 TFEU; (iii) the notion of potential competition and market definition, as well as the interplay between the regulatory framework and EU competition law; and (iv) the growing importance of e-commerce, which has led the European Commission to step up its scrutiny of vertical restraints in online distribution, and the interplay between e-commerce and copyright. There have been further interesting developments at the EU level in antitrust procedure, legislation and policy.