Tuesday, September 29, 2020
This article examines the meaning and scope of the notion of anti-competitive effects in EU competition law. It does so by bringing together several strands of the case law (and this across all provisions, namely Articles 101 and 102 TFEU and merger control). The analysis is structured around a framework that considers the main variables that shape the notion in practice: the time variable (actual or potential effects); the dimensions of competition and the counterfactual; the meaning of effects and the probability threshold (plausibility, likelihood, certainty).
The exercise shows that it is possible to discern a concrete meaning to the notion of anti-competitive effects. Some central questions, including the role and operation of the counterfactual and the threshold of effects, have already been answered by the Court of Justice. In particular, it has long been clear that anti-competitive effects amount to more than a mere competitive disadvantage and/or a limitation of a firm’s freedom of action. The impact on equally efficient firms' ability and/or incentive to compete would need to be established.
At the same time, some open questions and some potential areas of friction (relating, inter alia, to stakeholders' tendency to conflate appreciability and effects) remain. These are also discussed.