Defining Restrictions ‘By Object’

This article develops a definition of restrictions by object which fits well in an overall effect-based approach under Article 101. Classification as restriction by object is justified if and how a particular type of restriction generally results in net negative effects, which can be expected if such a restriction is (highly) unlikely to be used to create efficiencies. Restrictions are unlikely to be used to create efficiencies if they are unable to create efficiencies or because other restrictions are superior to create the concerned efficiencies. Basing the classification of by object restrictions on the low likelihood to create efficiencies provides a clear limiting principle for their definition, ensuring that the by object label is only applied to restrictions that are generally used to restrict competition to the detriment of consumers. Once a particular type of restriction is defined as by object, it should not be necessary to undertake an investigation into the market conditions and the effects of an individual agreement containing such a restriction. That would defy the object of having the category of restrictions by object