Kelvin Kwok
Common Law World Review
First published on 20 September 2019
Abstract: What
does it mean for an agreement to have an anticompetitive ‘object’ under Article
101(1) of the Treaty on the Functioning of the European Union? Can the European
Commission support an ‘object’ case by reference to the agreement parties’
subjective intention, and if so, how? What exactly is the relationship between
an agreement’s object and the parties’ subjective intention under competition
law? This article is the first to bring insights from Australian and New
Zealand cases, as well as analytical jurisprudence, to bear on these underexplored
yet important questions affecting the European Union and common law
jurisdictions around the world. Using Ronald Dworkin’s theory of legal
interpretation as the analytical basis, this article argues for a ‘mixed’
conception of the ‘object’ concept which enables an anticompetitive object to
be proven either objectively or subjectively. Anticompetitive subjective
intention accordingly provides an independent, alternative basis for
competition law liability for agreements; the lack of such intention, meanwhile,
does not help exculpate parties who are liable based on their objective purpose
to restrict competition. This article also argues that voluntariness and
evidentiary limits ought to be imposed on the use of anticompetitive subjective
intention in the ‘object’ analysis of agreements.
No comments:
Post a Comment