EU competition law applies to conduct by undertakings which affects trade between Member States. There are very few undertakings to which antitrust law does not apply. The Court of Justice has found that collective bargaining agreements between employees and employers are excluded as well as some forms of industry self-regulation when these rules promote a public interest. Article 101 of the Treaty on the Functioning of the European Union (TFEU) applies to catch cartels although it is not clear if all forms of algorithmic collusion can be punished. Cartels restrict competition by object, but many other agreements may enhance economic welfare and may only be punished if anti-competitive effects are shown. This requires an economic analysis of the impact of the agreement, having regard to legal and economic factors. Some restrictive agreements may be exempted when the anti-competitive effects are compensated by other economic benefits. Article 102 TFEU prohibits the abuse of a dominant position. Over the past fifteen years the Commission and the Court of Justice have shifted the interpretation of this prohibition to focus on conduct whose effects are likely to exclude efficient rivals, reflecting the more economic approach to antitrust.

This chapter concludes by answering the three research questions examined in this study: How have the rationale, method, and limits for the balancing of competition and non-competition interests in the enforcement of Article 101 TFEU evolved in the first sixty years of its existence? How has this process of evolution affected the attainment of the objectives of Regulation 1/2003, namely effectiveness, uniformity, and legal certainty? And what role should non-competition interests play in order to conform to such objectives? It presents the three transitions in balancing that emerge through modernisation and discusses their impact on the effectiveness, uniformity, and legal certainty of the enforcement. In addition, it offers policy recommendations on how non-competition interests should be taken into account in the enforcement of Article 101 TFEU.

This chapter studies the balancing function of Article 101(3) TFEU individual exemptions/exceptions. It reveals a great divergence in the frequency with which the Commission, national competition authorities, and EU and national courts have invoked and accepted the Article 101(3) TFEU, as well as their interpretations of the types of relevant benefits, the balancing process, and the intensity of control. Moreover, it uncovers the ‘death’ of Article 101(3) TFEU defence in the Commission’s practice following modernisation.

This chapter concludes by answering the three research questions examined in this study: How have the rationale, method, and limits for the balancing of competition and non-competition interests in the enforcement of Article 101 TFEU evolved in the first sixty years of its existence? How has this process of evolution affected the attainment of the objectives of Regulation 1/2003, namely effectiveness, uniformity, and legal certainty? And what role should non-competition interests play in order to conform to such objectives? It presents the three transitions in balancing that emerge through modernisation and discusses their impact on the effectiveness, uniformity, and legal certainty of the enforcement. In addition, it offers policy recommendations on how non-competition interests should be taken into account in the enforcement of Article 101 TFEU.

This chapter provides a historical overview of the development of Article 101 TFEU balancing to frame and identify the uncertainties surrounding it. The chapter begins with the EU primary and secondary law provisions, illustrating that they do not prescribe a clear balancing framework. Against this backdrop, it shows that the balancing principles have been greatly shaped by the practices of the Commission and EU Courts. It affirms that the development of the balancing principles is best understood by sorting the practices into four enforcement periods, which are then explored throughout the empirical chapters of the book. In addition to the developments at the EU level, the chapter devotes special attention to the competition law set-up and balancing approaches of each of the five Member States examined in the study.

This chapter studies the balancing function of Article 101(3) TFEU individual exemptions/exceptions. It reveals a great divergence in the frequency with which the Commission, national competition authorities, and EU and national courts have invoked and accepted the Article 101(3) TFEU, as well as their interpretations of the types of relevant benefits, the balancing process, and the intensity of control. Moreover, it uncovers the ‘death’ of Article 101(3) TFEU defence in the Commission’s practice following modernisation.

This chapter provides a historical overview of the development of Article 101 TFEU balancing to frame and identify the uncertainties surrounding it. The chapter begins with the EU primary and secondary law provisions, illustrating that they do not prescribe a clear balancing framework. Against this backdrop, it shows that the balancing principles have been greatly shaped by the practices of the Commission and EU Courts. It affirms that the development of the balancing principles is best understood by sorting the practices into four enforcement periods, which are then explored throughout the empirical chapters of the book. In addition to the developments at the EU level, the chapter devotes special attention to the competition law set-up and balancing approaches of each of the five Member States examined in the study.