How to assess whether an agreement between competitors has an anticompetitive object? In general, an agreement is known to be anticompetitive by object (or “per se”) when competitors agree on prices and quantities. However, when an agreement contains pro and anti-competitive features, a balance should be struck and the analysis is more complicated.
This assessment has an enormous impact on the burden of proof lying on competition authorities in antitrust investigations. Indeed, when competition authorities conclude that an agreement is restrictive by object, they do not have to prove the existence of an anticompetitive effect.
For decades, the antitrust community tried to to make a clear distinction between those agreements, which are restrictive by object and the ones whose effects have to be analysed in more depth. Finally, in the last years courts around Europe have handed down a number of judgments on this issue, trying to limit the frequent recourse by competition authorities to the “object shortcut”.
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