MP 2025/20 - A Sufficient Degree of Confusion? The Legal Certainty of By Object Restrictions
Aflevering 3, gepubliceerd op 05-08-2025 geschreven door mr. R.W. GeertsemaThe substantive test for a by object infringement of article 101(1) TFEU is mired in confusion, according to decades of scholarship. This article performs a deep dive by identifying the rules that together form the test and analysing them for consistency and clarity. The article finds that most rules are consistent and clear, contributing to legal certainty. Some elements are uncertain, which, however, is justified by the required flexibility of a test that encapsulates such a broad spectrum of behaviour. Yet other elements – mainly experience and pro-competitive effects - are unjustifiably uncertain and the Court is called upon to clarify them.