Legal Tests and the Object – Effect Dichotomy under Article 102 TFEU

Abstract

Despite the adoption of the “more economic approach” in the assessment of unilateral conduct, the object – effect dichotomy is still relevant under Article 102 TFEU, as it is under Article 101 TFEU. This article examines the tripartite classification of abusive conduct under Article 102 TFEU, namely “restrictions by object”, “restrictions by effect”, and “naked restrictions”, as a specific form of restrictions “by object”. It analyses the implications of this classification for the allocation of the burden of proof between the dominant undertaking, on the one hand, and the competition authority or private plaintiff, on the other.

Keywords

• abuse of dominance
• restrictions by object
• naked restraints
• objective justifications