The Disappearance of Article 101(3) in the Realm of Regulation 1/2003 : An Empirical Coding

This paper provides empirical evidence revealing the disappearance of Article 101(3) from the Commission's practice following the entry into force of Regulation 1/2003. It is based on a comprehensive “coding” of the more than 800 Commission decisions applying Article 101 TFEU between 1958–2016. This paper argues that this outcome is regrettable. As part of modernizing EU competition law, the Commission has advocated a new, narrower interpretation of Article 101(3). Whereas past practice of the Commission and EU Courts considered broad non-competition interests when applying Article 101(3), today the Commission declares in its policy papers that application of Article 101(3) is confined to the consumer welfare standard. Nevertheless, this paper maintains that the boundaries of Article 101(3) remain ill-defined since the Commission has yet to demonstratehow the new interpretation of Article 101(3) ought to be applied in practice and the EU Courts have not fully endorsed the Commission’s new approach