Article 101 TFEU effects-based assessment: object v effect, counterfactuals, economic methods and Article 101(3) efficiencies in horizontal and vertical agreements
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Article 101(1) TFEU
Article 101(1) TFEU outlaws agreements and concerted practices that may influence trade between EU Member States and that have the aim or effect of preventing, restricting, or distorting competition. Although the boundary between the two infringement categories has become somewhat indistinct, object infringements generally stem from conduct that is inherently anti-competitive and sit at the more serious end of the spectrum. In such instances, a competition authority or claimant need not prove an actual impact on competition, as this is presumed. By contrast, arrangements that are less clearly anti-competitive call for an analysis of their actual effects before condemnation under competition law. Any adverse impact on competition must be appreciable to be caught by Article 101 TFEU. It is unnecessary to demonstrate specific, realised restrictive effects; it is enough, on a realistic and credible analysis, to show the agreement is capable of producing appreciable restrictive effects on competition. Any assessment of effects must consider an appropriate counterfactual, as one cannot estimate the degree of restriction without examining how competition would develop in the absence of the agreement in question...
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Web page updated on 21/05/2026
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