European Competition Law provides a wide-ranging review of the European rules relating to competition: restrictive agreements, abuse of a dominant position, impact of intellectual property rights, procedure, merger control, State aid.

European Competition Law

Since the end of the 1970s, and in particular following the Metro judgment , EU law has developed an approach to assessment that is extremely favorable to certain restrictions on competition and this has become known as the rule of reason, after the American rule of reason doctrine. Identical in its principle, the scope of the rule of reason is very different to its American counterpart, since it  …

Development and challenges

Since the end of the 1970s, and in particular following the Metro judgment , EU law has developed an approach to assessment that is extremely favorable to certain restrictions on competition and this has become known as the rule of reason, after the American rule of reason doctrine. Identical in its principle, the scope of the rule of reason is very different to its American counterpart, since it is not of general application but is limited to certain specific cases.

The rule of reason grants preferential treatment to some anticompetitive practices by only assessing their effects within the context of Article 101(1) TFEU, and thereby removing the need to first subject practices to the rule before being able to obtain an exemption on the basis of Article 101(3) . This shortcut is however only possible where it is very clear that the harm to competition found is offset by the beneficial effects of the agreement and also on the condition that the agreement contains no obvious restrictions of competition such as price-fixing, market-sharing or the control of outlets .

The General Court appeared to be putting the brakes on any development of the rule of reason when it asserted that, “the existence of such a rule has not, as such, been confirmed by the EU courts” . According to the Court, recognition of the rule of reason would call into question the rules prescribed by Article 101 and the provision in paragraph 3 would lose much of its effectiveness and the examination of the objectively necessary character of a restriction cannot include the weighing up of the pro and anticompetitive effects of an agreement, which can take place only in the specific framework of Article 101(3) TFEU . Thus, the rule of reason, which appears to have been applied in the case law, has been more commonly relied on for the actual assessment of agreements, which implies going further than an analysis of the clauses and taking account of the actual context in which the agreements would produce their effects . The so-called rule of reason is thus reduced to a consideration of economic and legal context . The Court's assertion , recently upheld by the Court of Justice , does not reflect the reality of the matter . Apart from the fact that a contextual appraisal of the restriction may in itself already be seen as a manifestation of the rule of reason, there is no doubt that such a rule has been consecrated by the EU authorities who have not hesitated to exonerate restrictions on competition on the basis of the theory of ancillary restraints, an unavoidable necessity, the public interest or economic balance. However, both the Court of Justice  and the General Court  consider that the purpose of taking pro-competitive effects into account is not to rule out classification as a restriction of competition within the meaning of Article 101(1) TFEU, but simply to assess the objective seriousness of the practice in question and, consequently, to define the methods of proof, without applying a rule of reason balancing pro- and anticompetitive effects.

Case 26/76 Metro v Commission [1977] ECR 1875, LawLex200400002802JBJ.

A judge-made rule of reason has often been challenged by the Commission, which has resorted to the block exemption regulations to reach the same result by the statutory route. See the assimilation of the rule of reason in the Pronuptia judgment. (Case 161/84 Pronuptia [1986] ECR 353, LawLex200500004110JBJ) in Commission Regulation No 4087/88 of 30 November 1988 on franchise agreements.

Case C-883/19, Judgment of 12 January 2023, LawLex202300001245JBJ, who considers that the General Court (Case T-105/17, Judgment of 14 September 2019, LawLex201900001124JBJ), erred in law in holding that, with the exception of restrictions ancillary to a principal transaction, possible pro-competitive effects can only be taken into account in the context of the assessment of Article 101(3) TFEU.

Case T-106/17 JPMorgan Chase & Co., Judgment of 20 December 2023, LawLex202400000098JBJ, in line with the position adopted by the Court.

Cases T-374/94, T-375/94, T-384/94, T-388/94 European Night Services and others v Commission [1998] ECR II-3141, LawLex200400002947JBJ.

See Case T-112/99 M6 and others v Commission [2001] ECR II-2459, LawLex200500003906JBJ; Case T-350/99 E.ON Ruhrgas AG, Judgment of 29 June 2012, LawLex201300001048JBJ, reiterating that the existence of a rule of reason cannot be upheld and that it is not possible, when classifying ancillary restrictions, to interpret the requirement for objective necessity as implying a need to weigh up their pro and anticompetitive effects; Case T-691/14 Servier SAS, Judgment of 12 December 2018, LawLex201900001337JBJ.

Case T-111/08 MasterCard Inc., Judgment of 24 May 2012, LawLex201200001497JBJ. Case T-105/17HSBC Holdings plc, Judgment of 24 September 2019, LawLex201900001124JBJ.

See Case 56/65 Société Technique Minière v Maschinenbau Ulm [1966] ECR 337, LawLex200400002665JBJ; Case T-112/99 M6 and others v Commission [2001] ECR II-2459, LawLex200500003906JBJ.

See Cases T-374/94, T-375/94, T-384/94, T-388/94 European Night Services and others v Commission [1998] ECR II-3141, LawLex200400002947JBJ. See also, Commission Decision No 98/531/EC of 11 March 1998, Van den Bergh Foods Limited, LawLex200400002932JBJ; Case 5/69 Voelk v Vervaecke [1969] ECR 295, LawLex200400002764JBJ; Case 56/64 and 58/64 Consten v Commission EEC [1966] ECR 556, LawLex200400002598JBJ.

Case T-328/03 O2 (Germany) GmbH & Co, Judgment of  2 May 2006, LawLex200600002434JBJ; Case T-491/07 Groupement des cartes bancaires “ CB ”, Judgment of 29 November 2012, not available in English; Case T-208/13 Portugal Telecom SGPS SA, Judgment of 28 June 2016, LawLex201700001128JBJ; Case T-491/07 RENV, Groupement des cartes bancaires, Judgment of 30 June 2016, not available in English.

 Case C-307/18 Gnererics (UK) LTD, Judgment of 30 January 2020, LawLex202000000131JBJ: pointing out that the taking into account of the pro-competitive effects of a settlement agreement does not conflict with the European Court's settled case-law that EU competition law does not recognize a rule of reason, where it is intended not to undermine the characterization of a restriction of competition but merely to appreciate the objective seriousness of the practice concerned and, consequently, to determine the means of proving it.

Possibly due to the Court's desire to limit the possibilities for national authorities to grant exemptions when Regulation No 1/2003 had taken away the Commission's monopoly in that area.

European Competition Law

66. Development and challenges

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

66. Development and challenges

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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