The assessment of whether or not an agreement restricts competition under 101 (1) TFEU(2011.9)

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CPDP- 52-J(PDF:704KB)	"The assessment of whether or not an agreement restricts competition under 101 (1) TFEU"(2011.9) Naoko Mariyama (Part-time Lecturer, Faculty of Law, Doshisha University) 　This paper examines interpretations of "restriction of competition" in Article 101(1) TFEU. According to the case laws of the ECJ and the GC and the Guidelines of the Commission, certain considerations or analyses are necessary to establish that an agreement "restricts competition." However, balancing of pro-competitive and anti-competitive effects is not included in these considerations or analyses. Such balancing has to be conducted under Article 101 (3), since the Courts and the Commission concluded that such balancing should be carried out exclusively within the framework laid down by Article 101 (3). While various commentators had suggested that the Community Courts had carried out balancing under Article 101 (1), I show that the cases which were said to be carried out balancing under Article 101 (1) were the instances of being conducted not weighing, but the said considerations or analyses.

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Contents，Author

"The assessment of whether or not an agreement restricts competition under 101 (1) TFEU"(2011.9)
Naoko Mariyama (Part-time Lecturer, Faculty of Law, Doshisha University)
　This paper examines interpretations of "restriction of competition" in Article 101(1) TFEU. According to the case laws of the ECJ and the GC and the Guidelines of the Commission, certain considerations or analyses are necessary to establish that an agreement "restricts competition." However, balancing of pro-competitive and anti-competitive effects is not included in these considerations or analyses. Such balancing has to be conducted under Article 101 (3), since the Courts and the Commission concluded that such balancing should be carried out exclusively within the framework laid down by Article 101 (3). While various commentators had suggested that the Community Courts had carried out balancing under Article 101 (1), I show that the cases which were said to be carried out balancing under Article 101 (1) were the instances of being conducted not weighing, but the said considerations or analyses.