In a noteworthy ruling issued on January 30th, 2020 in response to a preliminary ruling requested by the Competition Appeal Tribunal of the United Kingdom, the Court of Justice of the European Union (“the Court”) provides interesting clarifications with respect to both the notion of “restriction of competition by object” and the notion of abuse of a dominant position. Only the notion of “restriction of competition by object” will be discussed in this paper.

In order to fully understand the Court’s approach, it is necessary to keep in mind the specific facts of the case. In the 1990s, the laboratory GlaxoSmithKline(“GSK”) marketed, in the United Kingdom, an originator medicine called “Seroxat”, the active ingredient of which is paroxetine. It is a prescription-only anti-depressant medicine, belonging to the group of medicines known as selective serotonin re-uptake inhibitors (“SSRIs”).

By 1999 and 2000, the patent protecting paroxetine and the “data exclusivity” period expired, opening the possibility for generic medicines manufacturers to enter the market. At that time, however, GSKhad obtained a series of so-called “secondary” patents, including a manufacturing process patent that remained valid until 2016.

Three generic medicines manufacturers planned to enter the British market by mid-2000 by offering for sale a generic version of paroxetine. In order to put an end to the litigation, GSKentered into a settlement agreement with each of the three generic medicines manufacturers:

 

• The first one, entered into on October 3rd, 2001 with the generic medicines manufacturer IVAX Pharmaceuticals UK(“IVAX”), by which GSKappointed IVAXas the “sole distributor” in the United Kingdom of a generic version of paroxetine, to a maximum volume of 770,000 packs of 30 tablets, in return for an annual “promotional allowance” of 3.2 million pounds sterling (“GBP”) paid by GSK;

 

• The second one, entered into on March 13th, 2002 with the generic manufacturer Generics (UK) Ltd.(“GUK”), by which GSKundertook to purchase all GUK’s stock of generic paroxetine intended for sale in the United Kingdom, to pay part of its legal costs and to pay GUKan annual marketing allowance. For its part, GUKundertook to enter into a sub-distribution agreement with IVAXfor 750,000 packs of generic paroxetine and not to make, import or supply paroxetine in the United Kingdom during the currency of the supply agreement between IVAXand GUK;

 

• The third one, entered into on November 12th, 2002 with the generic producer Alpharma, by which GSKundertook to pay part of its legal costs in the proceedings, and to pay him an indemnity. Alpharmaagreed to enter into a sub-distribution agreement with IVAXfor the supply of 620,000 packs of generic paroxetine and not to make, import or supply in the United Kingdom paroxetine other than what it would purchase from IVAXor what would be manufactured by GSK.

 

On February 12th, 2016, the Competition and Markets Authority (“CMA”) adopted a decision sanctioning GSKand the generic medicines manufacturersGUKand Alpharmafor a total amount of 44.99 million GBP. According to the CMA, the purpose of the agreements was to induce the generic medicines manufacturers to abandon their efforts to enter the market independently for the agreed period of time, and were similar to market foreclosure agreements prohibited by Article 101 TFEU. The CMAalso considered that the conclusion of these agreements by GSKconstituted an abuse of a dominant position within the meaning of Article 102 TFEU. Furthermore, the agreement concluded between GSKand IVAXwas not sanctioned for a reason specific to English national law, which at the time excluded vertical agreements from the law for anti-competitive agreements.

The sanctioned companies having appealed before the Competition Appeal Tribunal against this decision, the latter referred several questions to the Court for a preliminary ruling on the interpretation of Articles 101 and 102 TFEU. With respect to the concept of “restriction of competition by object”, the Court was asked the following question : Must Article 101(1) TFEU be interpreted as meaning that a settlement agreement – with respect to pending court proceedings between a manufacturer of originator medicines and a manufacturer of generic medicines, who are potential competitors, concerning the validity of a patent, held by the former, for the process of manufacturing the active ingredient of an originator medicine that is in the public domain and whether a generic version of that product infringes that patent – whereby the manufacturer of generic medicines undertakes not to enter the market of the medicine containing that active ingredient and not to pursue its action seeking the revocation of that patent for the term of the agreement, in consideration for transfers of value to it by the manufacturer of originator medicines, constitutes an agreement that has as its object the prevention, restriction or distortion of competition? In its answer to the question, the Court provides important clarifications on the concept of “restriction of competition by object” applied to “pay-for-delay”[1] agreements (I). The Court also specifies, on the other hand, the role of pro-competitive effects at the stage of the legal classification of an agreement under Article 101(1) TFEU (II).

 

I –     The “subjectivization” of the legal classification of “pay-for-delay” agreements as a “restriction of competition by object”

If the analytical grid provided by the Court is intended to be objective (1), its concrete implementation necessarily implies the interplay of subjective assessments (2).

 

1 /     The apparent objectivity of the Court’s analytical grid

The Court begins by recalling the principle of the restrictive interpretationof the concept of “restriction of competition by object”, the scope of application of this concept being “enclosed” by the criterion of the “sufficient degree of harm to competition” of the collusive practice enshrined in the famous “Groupement des cartes bancaires”[2] case law. The proof of such a sufficient degree of harm to competition presupposes an analysis of the “content” of the provisions of the agreement, its “objectives” as well as the “economic and legal context” of which it forms part.[3] As we shall see below, this last component of the reasoning takes on a new dimension in this ruling.

The Court went on to state that “pay-for-delay” agreements are likely to have restrictive effects on competitionsince “challenges to the validity and scope of a patent are part of normal competitionin the sectors where there exist exclusive rights in relation to technology”.[4] However, the Court quickly points out, only two paragraphs later, that this clarification cannot justify any automaticity as regards the legal classificationof “pay-for-delay” agreements as “restriction of competition by object”.[5] This methodological reminder is welcome. Indeed, as opposed to American antitrust law, there is no concept of “restriction of competition per se” under European Union law for anti-competitive agreementswhose sufficient degree of harm to competition would be so obvious that it would only require a prima facieapproach (“quick look approach”) in order to be established and, therefore, the agreement irremediably prohibited.[6] Thus, under European Union law for anti-competitive agreements, the principle is that of the effects-based approach; the legal classification as a “restriction of competition by object” being an exception whose interest is purely probative.[7]

After having proceeded with this methodological reminder, the Court further clarifies the reasoning that must be followed in order to classify a “pay-for-delay” agreement as a “restriction of competition by object”. Indeed, according to the Court, the existence of transfers of value – the pecuniary or non-pecuniary nature of such transfers being indifferent – “is not sufficient ground” to classify a pay-for-delay agreement as a “restriction of competition by object”.[8] Indeed, such transfers of value may in practice prove to be justified, in particular when they aim to compensate for the costs of proceedings related to the dispute between the originator medicines manufacturer and generic medicines manufacturers, or when they correspond to remuneration for the actual supply of goods or services to the originator medicines manufacturer.[9]

Therefore, the Court provides an analysis grid at first sight objective: “such a characterisation as a ‘restriction by object’ must be adopted when it is plain from the analysis of the settlement agreement concerned that the transfers of value provided for by it cannot have any explanationother than the commercial interest of both the holder of the patent and the party allegedly infringing the patent not to engage in competition on the merits”[10]. To follow the Court, it would suffice to refer to the justifications – civilists would speak of “objective cause”[11]– for the “pay-for-delay” agreement. This objectivity of the analysis grid provided by the Court is only apparent, as this analysis grid in reality confines itself to latent subjectivity (2).

2 /    The latent subjectivity of the Court’s analytical grid

The legal classification of a “pay-for-delay” agreement as a “restriction of competition by object” thus implies in practice the demonstration of the uniqueness[12] of the objective cause of the agreement in the civil sense of the term, the unique objective cause of the agreement having to be “the commercial interest of both the holder of the patent and the party allegedly infringing the patent not to engage in competition on the merits”.

In order to assess the satisfaction of this sine qua noncondition of the legal classification of the “pay-for-delay” agreement as a “restriction of competition by object”, the Court specifies that it is necessary to take into account “all the transfers of value made between the parties, whether those were pecuniary or non-pecuniary”.[13]It is then a binary reasoning that must be adopted:

 

• On the one hand, it is necessary to assess whether the net gain arising from the transfers of value by the manufacturer of originator medicines in favour of the manufacturer of generic medicines may be justified by the existence of any quid pro quoor waivers by the manufacturer of generic medicines that are proven and legitimate.[14]

 

• On the other hand, if that is not the case, it has to be determined whether that net gain is “sufficiently large” actually to act as an incentive to the manufacturer concerned of generic medicines to refrain from entering the market concerned.[15]

 

If the first stage of the reasoningwhich implies checking the existence of counterparties is objective[16], the second stage of the reasoningimplies as for it to proceed to a sort of “proportionality test” between, on the one hand, the quantumof the transfers of value and, on the other hand, the incentive effect of such transfers of value. The subjectivityof such a test is obvious, and will not fail to raise a number of problems linked to its concrete implementation: in practice, how can one make the distinction between “sufficiently large” and “insufficiently large” transfers of value? The Court gives no further indication on this subject. It will therefore be necessary, for economic operators who envisage to conclude a “pay-for-delay” agreement, to undertake the exercise of an eminently subjective, even divinatory “proportionality test”, in a situation of total legal uncertainty.[17]It is to be hoped that future decisions on “pay-for-delay” agreements will be instructive in this respect. If the interest of this ruling is largely due to the clarifications provided by the Court on the application of the concept of “restriction of competition by object” to “pay-for-delay” agreements, it is also due to the broader teachings delivered by the Court on the very concept of “restriction of competition by object” (II).

 

II –    The incursion of pro-competitive effects at the stage of the legal classification of the agreement as a “restriction of competition by object”

This incursion of pro-competitive effects at the stage of the legal classification of the agreement amounts, on the one hand, to deconstructing the structure of Article 101 TFEU (1). Such an incursion leads, on the other hand, to a resurgence of controversies related to the inexistence of a “rule of reason”[18]under European Union law for anti-competitive agreements (2).

 

1 /     Deconstructing the structure of Article 101 TFEU

The Court provides substantial clarifications on the issue of taking into account, at the stage of the legal classification of the agreement as a “restriction of competition by object”, its possible pro-competitive effects. The Court accepts the principle of such inclusion, by identifying the pro-competitive effects as a “branch” of the “deciduous tree” which is the concept of “economic and legal context” which is itself part of the “maze”[19]of the “restriction of competition by object”: “where the parties to that agreement rely on its pro-competitive effects, those effects must, as elements of the context of that agreement, be duly taken into account for the purpose of its characterisation as a ‘restriction by object’”.[20]Indeed, according to the Court, such pro-competitive effects are “capable of calling into question the overall assessment of whether the concerted practice concerned revealed a sufficient degree of harmto competition and, consequently, of whether it should be characterised as a ‘restriction by object’”.[21]

These new details can be confusing. Indeed, on the one hand, the concept of “economic and legal context” is only very rarely used by competition authorities in the exercise of legal classification of agreements in order to rule out the classification of “restriction of competition by object”.[22]On the other hand, such clarifications sound like a “sledgehammer blow” to the structure of Article 101 TFEU. For the record, Article 101 TFEU implies a two-step reasoning:

 

• At a first stage, it is the question of the existence or not of a restriction of competition which needs to be answered.[23]

 

• At a second stage, the question is whether or not there are pro-competitive effects of the agreement that could “save” it from the prohibition of anti-competitive agreements.[24]

 

Thus, taking into account pro-competitive effects is, in principle, a matter for the application of Article 101(3) TFEU, and not Article 101(1) TFEU. Consequently, taking into account the pro-competitive effects of the agreement at the stage of its legal classification seems to be in clear contradiction with the structural logic of Article 101 TFEU. One may thus ask the question of the useful effect or even the survival[25]of Article 101(3) TFEU, the benefit of which being almost never granted in practice to economic operators who invoke it. Whether one agrees with it or opposes it, such a clarification undeniably have as a corollary the increasing complexity of the analysis of agreements in the light of European Union law for anti-competitive agreements, insofar as they contribute to “blurring” the boundaries between the two stages of the reasoning based on the structural logic of Article 101 TFEU. Such a clarification, at the very least debatable, is likely to bring back “to the forefront” the doctrinal polemics related to the inexistence of a “rule of reason” under European Union law for anti-competitive agreements (2).

 

2 /    The resurgence of controversies over the inexistence of a “rule of reason” under European Union antitrust law

As soon as the principle of taking into account the pro-competitive effects of the agreement at the stage of its legal classification as a “restriction of competition by object” is accepted, the Court hastens to specify, in the following paragraph, that such inclusion “is in no way in conflict with the Court’s settled case-law that EU competition law does not recognise a ‘rule of reason’, by virtue of which there should be undertaken a weighing of the pro- and anticompetitive effects of an agreement when it is to be characterised as a ‘restriction of competition’ under Article 101(1) TFEU”.[26]Indeed, according to the Court, the purpose of such a principle is “not to undermine characterisation as a ‘restriction of competition’ within the meaning of Article 101(1) TFEU, but merely to appreciate the objective seriousness of the practice concernedand, consequently, to determine the means of proving it”.[27]If the Court feels the need to justify its solution, it is because the Court is well aware of the weakness of its reasoning.

In this regard, in her opinion, Advocate General Juliane Kokott distinguished between two scenarios:[28]

 

• the first one, in which the existence of pro-competitive effects may “call into question the very finding that there is a restriction of competitionprohibited by Article 101(1) TFEU”;[29]and

 

• the second one, in which the existence of pro-competitive effects may “call into question the finding that there is a restriction of competition by object, making it necessary to examine the effects of the agreement in question”.[30]

 

However, in the ruling under analysis, the Court pronounces itself only on the second scenario developed by Advocate General Juliane Kokott, and remains silent on the first scenario, inviting it to “revisit” its case law on the inexistence of a “rule of reason” under European Union law for anti-competitive agreements. The Court’s silence on this first scenario only accentuates the fragility of its reasoning in this particular case.[31]

Indeed, several authoritative arguments[32]went in the direction of a “revisiting” of the Court’s case law related to the inexistence of a “rule of reason”under European Union law for anti-competitive agreements:

 

• First of all, with regard to distribution law, the Court has “saved” selective distribution agreements from the application of Article 101(1) TFEU by applying a European-style “rule of reason” without, however, expressly recognizing it.[33]

 

• Secondly, the theory known as “ancillary restrictions” also makes it possible to “save” ancillary agreements linked to a main operation that is lawful under article 101(1) TFEU from the prohibition enacted by this article, in application of a European-style “rule of reason” that is again not expressly referred to as such.[34]

 

• Finally, in its so-called “Wouters” case law, the Court has accepted the principle according to which the “overall context” of an agreement can “save” it from the application of Article 101(1) TFEU, which amounts to the application of a “rule of reason” which does not say its name “through the back door”.[35]

 

In this ruling, the Court refused in any event to “revisit” its case law related to the inexistence of a “rule of reason” under European Union law for anti-competitive agreements, firmly recalling that the balancing of pro-competitive effects with the anti-competitive effects of an agreement must be carried out within the framework of Article 101(3) and not Article 101(1) TFEU. In the light of the previous developments, this reminder is regrettable because of its insincerity. Indeed, it is obvious that, on the one hand, the “rule of reason” from American antitrust law is de factoapplied – albeit sparingly – by the Court and, on the other hand, that the structure of Article 101 TFEU, which is more than sixty years old,[36]deserves to be “tidied up” or even “modernized”[37]. In this respect, should we not “uproot” the “bad weed” that Article 101(3) TFEU constitutes and replace it with a European-style “rule of reason”, which would make it possible to escape the cumbersome implementation of Article 101(3) TFEU?[38]This is not the meaning of this judgment, which accepts the principle of taking into account the pro-competitive effects of an agreement at the stage of its legal classification only to “take the agreement out of the category of restrictions by object”[39]. In the end, one will regret the lack of audacity of the Court, which is reluctant to “revisit” a praetorian law that can sometimes be qualified as outdated. Beyond this, the clarifications made by the Court do nothing to simplify the legal regime applicable to the concept of “restriction of competition by object”, quite the contrary: by adding the consideration of the pro-competitive effects of the agreement in question, it complicates its legal regime, the “maze” of “restriction of competition by object” becoming increasingly “overgrown” and, as a result, dense and unreadable. Let us hope that the Court itself finds its way out, for it seems for the moment somewhat lost in the meanders of the maze[40]of its own jurisprudence.

 

Quentin COLOMBIER

[1]    On the concept of « pay-for-delay », see Walid Chaiehloudj, Les accords de report d’entrée : contribution à l’étude de la relation du droit de la concurrence et du droit des brevets, Ph. D. thesis, 2019 : “Deferred entry agreements can be defined as agreements that have the purpose or effect of delaying the entry of a competitor into the market. In essence, a patentee pays compensation to a competitor – or potential competitor – in return for delaying the marketing of its product. Thus, to encourage delayed entry, the modus operandi appears rather rudimentary. Patentees will simply ‘pay’ for the disinterest of their competitors by disbursing millions of euros. The payment of these colossal sums encourages rival companies to turn away from the market for a while, which ultimately allows innovative companies to preserve their hard-won monopoly through patents” (free translation).

 

[2]    Judgment of the Court of 11^thSeptember 2014, Case C-67/13 P, “Groupement des cartes bancaires (CB) v. European Commission”. See also, as regards the pharmaceutical sector, Judgment of the Court of 23^rdJanuary 2018, Case C-179/16, “F. Hoffmann-La Roche Ltd and Others v Autorità Garante della Concorrenza e del Mercato”.

 

[3]    Ruling under analysis, paragraph No. 67.

 

[4]    Ibidem, paragraph No. 81.

 

[5]    Ibidem, paragraph No. 84: “Such an agreement cannot, however, be considered, in all cases, to be a ‘restriction by object’, within the meaning of Article 101(1) TFEU”.

 

[6]    See, in particular, Judgment of the General Court of 12^thDecember 2018, Case T-679/14, “Teva UK Ltd and Others v. European Commission”. This decision has been appealed to the Court of Justice of the European Union (pending case).

 

See also, for a rejection of the concept of “obvious restriction”, Judgment of the General Court of 29^thNovember 2012, Case T-491/07, “Groupement des cartes bancaires (CB) v. European Commission”:“it should be recalled that Article 81(1) EC does not refer to the concept of an obvious restriction” (free translation).Although this decision was overturned by the European Court of Justice, the principle of the inexistence of the concept of “obvious restriction” under European Union law for anti-competitive agreements remains indisputable.

 

See also, for a clear expression of the principle, Paris Court of Appeal, October 17^th2019, RG 18/24456, « Stihl »: “The Authority notes that, while the existence of a restriction of competition by object must be interpreted restrictively, it cannot be limited to restrictions that are ‘manifestly’, ‘prima facie’ or ‘flagrantly’ harmful to competition, or be assimilated to a ‘prohibited restriction per se’” (free translation). This decision has been appealed before the French Supreme Court (pending case).

 

[7]    See, in particular, Laurence Idot, « Le retour de l’objet anticoncurrentiel… », Concurrences No. 4-2009, pages 1-2: “the distinction between object and effect does not concern the existence of an infringement of competition, but rather its proof, with the practical consequence of reducing the burden of proofin favor of the competition authorities” (free translation).

 

See also Marie Malaurie-Vignal, Droit de la concurrence interne et européen, 8^th edition, Sirey: “Originally, the notion of anti-competitive object had a probative value. Object offences are those that necessarily lead to distortion of competition. The seriousness of certain agreements is such that the anticompetitive effect is presumed” (free translation).

 

[8]    Ruling under analysis, paragraph No. 85.

 

[9]    Ibidem, paragraph No. 86.

 

[10]  Ibidem, paragraph No. 87.

[11]  Under general contract law, the “cause” was, prior to the entry into force of “ordonnance” No. 2016-131 of February 10^th, 2016 reforming contract law, the general regime and proof of obligations, a condition for the validity of the contract. Although it was abolished by the “ordonnance”, its function has nevertheless been preserved through other notions.

 

The theory of “cause” was very subtle, proceeding from a notional (and functional) dichotomy of cause: the so-called “objective” cause implied, for the judge, an analysis of the consideration exchanged by the parties to the contract. The so-called “subjective” cause involved, for its part, studying the individual motives of each of the parties to the contract.

 

[12]  The Court using the formula “it cannot have any explanation other than”.

[13]  Ruling under analysis, paragraph No. 90.

 

[14]  Ibidem, paragraph No. 92.

 

[15]  Ibidem, paragraph No. 93.

 

[16]  See, contra, Michel Debroux, Objet anticoncurrentiel : La Cour de justice de l’Union européenne précise, à la suite d’une question préjudicielle du Competition Appeal Tribunal, les conditions dans lesquelles un accord de report d’entrée (« pay-for-delay ») constitue une restriction de concurrence par l’objet (Generics – UK, GlaxoSmithKline,Xellia Pharmaceuticals…), January 30^th 2020, Concurrences No. 2-2020, pages 72-74, the author considering that the first part of the reasoning leads to “getting lost in the meanders of an illusory quantification of the appreciation of a risk or a chance” (free translation).

 

[17]  The task of in-house counsels in terms of competition law compliance will be far from easy in this respect.

[18]  For a definition of the concept of “rule of reason”, see infra(2).

 

[19]  On the “unseizable” nature of the notion of “restriction of competition by object”, see, at the French level, French Supreme Court, January 29^th, 2020, No. 18-10.967 and 18-11.001 (the so-called “check image exchange commission” case, still pending before the Paris Court of Appeal after a full cassation of the first appeal ruling and then a partial cassation of the second appeal ruling) and, at the European Union level, Court of Justice of the European Union, April 2^nd, 2020, Case C-228/18 (“Gazdasági Versenyhivatal v. Budapest Bank Nyrt. and others”).

 

[20]  Ruling under analysis, paragraph No. 103.

 

[21]  Ibidem.

 

[22]  See, for a rare example of exploitation of the concept of “economic and legal context” in order to rule out the classification of “restriction of competition by object”, the French Competition Authority decision No. 13-D-03 of February 13^th, 2013 relating to practices implemented in the pork butchering sector: “In the case in point, the exchange of information organized between slaughterhouse members of the FAC – sharing their respective expectations as to the level of the ‘withdrawal price’, either a ‘normal’ market or a ‘difficult’ market – cannot, in the legal and economic context of the MPB in which it operates, namely that of a market by degressive electronic auctions governed by the ‘sale by classification’ agreement described in paragraphs 53 and 54 above, be considered as restricting competition by reason of its very object” (free translation). See, contra, for a lack of exploitation of the concept of “economic and legal context” in order to rule out the classification of “restriction of competition by object” in the same sector, the French Competition Authority decision No. 20-D-09 of July 16^th, 2020 relating to practices implemented in the sector of purchases and sales of pork cuts and charcuterie products. However, this decision is currently pending before the Paris Court of Appeal.

 

[23]  Article 101(1) TFUEproviding that “The following shall be prohibited as incompatible with the internal market: all agreements between undertakings[…] which have as their object or effect the prevention, restriction or distortion of competitionwithin the internal market”.

 

[24]  Article 101(3) TFUEproviding that “The provisions of paragraph 1 may, however, be declared inapplicable in the case of any agreement[…] which contributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, and which does not impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives; [and] afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question”.

 

[25]  See Michel Debroux, opus citatum, who evokes the idea of “the last nail planted in the coffin of Article 101 §3” (free translation).

 

[26]  Ruling under analysis, paragraph No. 104.

 

[27]  Ibidem.

 

[28]  Opinion of Advocate General Juliane Kokott, January 22^nd 2020, Case C-307/18, « Generics (UK) Ltd e.a. contre Competition and Markets Authority », paragraphs No. 149 et sequens.

 

[29]  By this first scenario, Advocate General Juliane Kokott seemed to invite the Court to “revisit” its case law on the inexistence of a “rule of reason” under European Union law for anti-competitive agreements.

 

[30]  This second scenario corresponds to the principle expressed by the Court in the ruling under analysis.

 

[31]  See, in particular, Laurence Idot, « Première position de la Cour de justice sur les accords de règlement amiable dans le secteur pharmaceutique », RDCJune 2020, No. 116w4, page 85, who believes that “the Court’s silence on the first situation contemplated by the General Advocate is open to interpretation”.

 

[32]  These argumenta ad potentiamare qualified as such insofar as they are rooted in the very case law of the Court.

 

[33]  See, in particular, Judgment of the Court of 13^thOctober 2011, Case C-439/09, “Pierre Fabre Dermo-Cosmétique SAS v. Président de l’Autorité de la concurrence and Ministre de l’Économie, de l’Industrie et de l’Emploi” : “Systems of selective distribution, insofar as they aim at the attainment of a legitimate goal capable of improving competitionin relation to factors other than price, therefore constitute an element of competition which is in conformity with Article 101(1) TFEU” (paragraph No. 40 in fine).

 

[34]  See, in particular, Judgment of the Court of 11^thSeptember 2014, Case C‑382/12 P, “MasterCard Inc. and Others v. European Commission” : “It is apparent from the case-law of the Court of Justice that if a given operation or activity is not covered by the prohibition rule laid down in Article 81(1) EC, owing to its neutrality or positive effect in terms of competition, a restriction of the commercial autonomy of one or more of the participants in that operation or activity is not covered by that prohibition rule either if that restriction is objectively necessary to the implementation of that operationor that activity and proportionate to the objectives of one or the other”. See, for a meaningful example, the case of franchise agreements: “Provisions which are strictly necessary in order to ensure that the knowhow and assistance provided by the franchisor do not benefit competitors do not constitute restrictions of competition for the purposes of Article 85 (1)” (Judgment of the Court of 28^thJanuary 1986, Case 161/84, “Pronuptia de Paris GmbH v. Pronuptia de Paris Irmgard Schillgallis”).

 

[35]  Judgment of the Court of 19^thFebruary 2002, Case C-309/99, “J. C. J. Wouters, J. W. Savelbergh and Price Waterhouse Belastingadviseurs BV v. Algemene Raad van de Nederlandse Orde van Advocaten”: “However, notevery agreement between undertakings or every decision of an association of undertakings which restricts the freedom of action of the parties or of one of them necessarily falls within the prohibition laid down in Article 85(1) of the Treaty. For the purposes of application of that provision to a particular case, account must first of all be taken of the overall contextin which the decision of the association of undertakings was taken or produces its effects[…]” (paragraph No. 97).

 

[36]  See Article 85 of the Treaty of Rome (“EEC Treaty”) which entered into force on January 1^st, 1958.

 

[37]  Article 101(3) TFEU, the benefit of which is in practice almost never granted to economic operators who invoke it, is more akin to a “relic” of competition law than to a norm with a useful effect.

[38]  See, in particular, Robert Kovar, Le droit communautaire de la concurrence et la « règle de raison », RTDE1987/3, page 254: “By accepting a conception that is more marked by economic realism in the assessment of [Article 101(1) TFEU], the Commission and the Court of Justice could avoid having to use procedures whose effectiveness is not always obvious, but whose harmfulness for the safeguard of the rights of citizens is, on the other hand, generally noted” (free translation). See, contra, Laurence Idot, Accords de report d’entrée, EuropeNo. 3, March 2020, remark No. 104, who hopes that the clarifications provided by the Court “will put an end to the too frequent use of a vocabulary that is unsuited to European competition law” (free translation).

 

The Court of First Instance having already admitted the possibility of « a more flexible interpretation of the prohibition laid down in Article [101(1) TFEU] » (Judgment of the Court of First Instance of 18^thSeptember 2001, Case T-112/99, “Métropole télévision (M6), Suez-Lyonnaise des eaux, France Télécom and Télévision française 1 SA (TF1) v. Commission of the European Communities”, paragraph No. 75).

 

[39]  David Bosco, La Cour de justice précise le régime des accords de règlement amiable et la notion de restriction par l’objet dans un arrêt important, Contrats Concurrence ConsommationNo. 4, April 2020, remark No. 71.

 

[40]  The metaphor of the “maze” was inspired by Lewis Carroll’s Alice’s Adventures in Wonderland(1865).