Posted by Social Science Research Network
The Tests of Illegality Under Articles 101 and 102 TFEU Pinar Akman (University of Leeds)
Abstract: This article aims to assess one of the many contributions of ECONOMICS AND THE INTERPRETATION AND APPLICATION OF U.S. AND E.U. ANTITRUST LAW by Richard Markovits to our understanding of US and EU antitrust laws. That specific contribution is the tests of illegality adopted in Markovits’ study to interpret Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU). This article also examines the claim that none of these tests is an economic-inefficiency test of illegality. In order to achieve its aim, the article first comments on the “specific-anticompetitive-intent test” that is proposed to be the test of illegality under the object branch of the prohibition of Article 101 and under the abuse prohibition of Article 102 TFEU, before moving onto separate discussions of the tests of illegality in the specific contexts of Article 101 TFEU and subsequently of Article 102 TFEU. The article finds that there is still considerable ambiguity concerning some of the most fundamental concepts of antitrust law such as “competition on the merits” at least in the EU but perhaps also in the US. The article reaches the conclusion that there is significant scope for discussion and disagreement on what makes a conduct anticompetitive, irrespective of whether such conduct is of the type prohibited under Article 101 TFEU or of the type prohibited under Article 102 TFEU.
Featured News
ConocoPhillips Acquires Marathon Oil for $22.5 Billion in Major Energy Sector Consolidation
May 29, 2024 by
CPI
Judge Denies Amazon’s Bid to Dismiss FTC Lawsuit Over Prime Membership Practices
May 29, 2024 by
CPI
Germany and France Advocate for Major EU Competition Reform
May 29, 2024 by
CPI
Equifax Accused of Monopolizing Employment Verification Market in New Suit
May 29, 2024 by
CPI
Car Battery Makers to Challenge EU Cartel Charges in Brussels
May 29, 2024 by
CPI
Antitrust Mix by CPI
Antitrust Chronicle® – Merger Guidelines Retrospective
May 21, 2024 by
CPI
Mergers of Complements
May 21, 2024 by
CPI
Personality Traits, Private Equity, and Merger Analysis
May 21, 2024 by
CPI
The 2023 Merger Guidelines: Lessons in the Importance of Incipiency, Modern Economics, and Monopsony
May 21, 2024 by
CPI
The 2023 Merger Guidelines: Sharpening Merger Analysis
May 21, 2024 by
CPI