Restriction by Object: A Restriction Based Purely on Experience or also on Effects?

Abstract

This article claims that restriction by object is a concept purely based on experience and for which the effects of a disputed agreement are not relevant. While an examination of an agreement’s effects requires a counterfactual assessment, a restriction by object does not. Decisive for a restriction by object is whether a disputed agreement may be subordinated under a by object type of collusion, considering the agreement’s content, objectives, and context, albeit not effects. By object types of collusion can be described as general rules which are inductively based on the experience that agreements with certain content, objectives, and context are sufficiently likely sufficiently harmful to competition.