The Journey toward an Effects-Based Approach under Article 101 TFEU—The Case of Hardcore Restraints

This article charts the journey that the European Commission has taken to “modernize” the interpretation and application of Article 101. It starts by analyzing the Commission's initial formalistic approach to Article 101 and examining why change was necessary. It then considers how, and the extent to which, reform has occurred, focusing on the treatment of hardcore restraints. The article notes that, in spite of the significant change that has followed the modernization program, there has been little evolution in the EU in the treatment of hardcore restraints, which are still treated on a strict and inflexible basis. Indeed, it concludes that the process of modernization may have made it less likely that firms will be willing to incorporate hardcore restraints in their agreements, even where they consider them to be indispensable to the working of a procompetitive arrangement.