This chapter concludes by answering the three research questions examined in this study: How have the rationale, method, and limits for the balancing of competition and non-competition interests in the enforcement of Article 101 TFEU evolved in the first sixty years of its existence? How has this process of evolution affected the attainment of the objectives of Regulation 1/2003, namely effectiveness, uniformity, and legal certainty? And what role should non-competition interests play in order to conform to such objectives? It presents the three transitions in balancing that emerge through modernisation and discusses their impact on the effectiveness, uniformity, and legal certainty of the enforcement. In addition, it offers policy recommendations on how non-competition interests should be taken into account in the enforcement of Article 101 TFEU.

This chapter studies the balancing function of Article 101(3) TFEU individual exemptions/exceptions. It reveals a great divergence in the frequency with which the Commission, national competition authorities, and EU and national courts have invoked and accepted the Article 101(3) TFEU, as well as their interpretations of the types of relevant benefits, the balancing process, and the intensity of control. Moreover, it uncovers the ‘death’ of Article 101(3) TFEU defence in the Commission’s practice following modernisation.

This chapter focuses on the balancing embedded in Block Exemption Regulations (BERs). This balancing tool has received limited attention in scholarship, especially following modernisation. The chapter demonstrates that BERs were initially introduced to EU competition law to accommodate the enormous number of notifications that resulted from the set-up of the old enforcement regime. Although this workload-reducing function perished following the entry into force of Regulation 1/2003, the special BER instrument still remains in force. This chapter concludes that this may be related to the fact that BERs play, and have played in the past, an important role in addition to their administrative function. BERs, like Article 101(3) TFEU individual exemptions, may also reflect a form of balancing between competition and non-competition interests. They offer a pre-determined, clear balancing rule. This chapter shows that balancing under BERs takes place both in the adoption and the application of a BER. It discusses different types of BERs and the effects of modernisation of BERs in the late 1990s.

This chapter is dedicated to Article 101(1) TFEU balancing tools. It examines tools aimed at balancing competition with state or public interests, such as the state action defence, notion of undertakings, Article 106(2) TFEU exception for services of general economic interests, the exception for collective bargaining agreements between employers and employees, and the inherent restriction doctrine. The chapter also studies tools for balancing competition and commercial interests, such as the rule of reason, objectively necessary agreements, ancillary restraints, and the de minimis doctrine. The chapter shows that unlike most of the explicit-substantive balancing tools that are based on EU primary or secondary law and which were largely developed by the Commission, the wording of Article 101(1) TFEU does not explicitly refer to a balancing function. Rather, the balancing tools of Article 101(1) TFEU are predominantly derived from the CJEU’s case law. It reveals that the CJEU introduced those tools to counterbalance the Commission’s broad interpretation of what constitutes a restriction of competition falling within the ambit of Article 101(1) TFEU. The Court has held that agreements restricting the commercial freedom of parties might escape the prohibition of Article 101(1) TFEU if they are necessary for attaining social or efficiency-related goals.

This chapter is dedicated to Article 101(1) TFEU balancing tools. It examines tools aimed at balancing competition with state or public interests, such as the state action defence, notion of undertakings, Article 106(2) TFEU exception for services of general economic interests, the exception for collective bargaining agreements between employers and employees, and the inherent restriction doctrine. The chapter also studies tools for balancing competition and commercial interests, such as the rule of reason, objectively necessary agreements, ancillary restraints, and the de minimis doctrine. The chapter shows that unlike most of the explicit-substantive balancing tools that are based on EU primary or secondary law and which were largely developed by the Commission, the wording of Article 101(1) TFEU does not explicitly refer to a balancing function. Rather, the balancing tools of Article 101(1) TFEU are predominantly derived from the CJEU’s case law. It reveals that the CJEU introduced those tools to counterbalance the Commission’s broad interpretation of what constitutes a restriction of competition falling within the ambit of Article 101(1) TFEU. The Court has held that agreements restricting the commercial freedom of parties might escape the prohibition of Article 101(1) TFEU if they are necessary for attaining social or efficiency-related goals.

This chapter concludes by answering the three research questions examined in this study: How have the rationale, method, and limits for the balancing of competition and non-competition interests in the enforcement of Article 101 TFEU evolved in the first sixty years of its existence? How has this process of evolution affected the attainment of the objectives of Regulation 1/2003, namely effectiveness, uniformity, and legal certainty? And what role should non-competition interests play in order to conform to such objectives? It presents the three transitions in balancing that emerge through modernisation and discusses their impact on the effectiveness, uniformity, and legal certainty of the enforcement. In addition, it offers policy recommendations on how non-competition interests should be taken into account in the enforcement of Article 101 TFEU.

This chapter provides a historical overview of the development of Article 101 TFEU balancing to frame and identify the uncertainties surrounding it. The chapter begins with the EU primary and secondary law provisions, illustrating that they do not prescribe a clear balancing framework. Against this backdrop, it shows that the balancing principles have been greatly shaped by the practices of the Commission and EU Courts. It affirms that the development of the balancing principles is best understood by sorting the practices into four enforcement periods, which are then explored throughout the empirical chapters of the book. In addition to the developments at the EU level, the chapter devotes special attention to the competition law set-up and balancing approaches of each of the five Member States examined in the study.

This chapter focuses on the balancing embedded in Block Exemption Regulations (BERs). This balancing tool has received limited attention in scholarship, especially following modernisation. The chapter demonstrates that BERs were initially introduced to EU competition law to accommodate the enormous number of notifications that resulted from the set-up of the old enforcement regime. Although this workload-reducing function perished following the entry into force of Regulation 1/2003, the special BER instrument still remains in force. This chapter concludes that this may be related to the fact that BERs play, and have played in the past, an important role in addition to their administrative function. BERs, like Article 101(3) TFEU individual exemptions, may also reflect a form of balancing between competition and non-competition interests. They offer a pre-determined, clear balancing rule. This chapter shows that balancing under BERs takes place both in the adoption and the application of a BER. It discusses different types of BERs and the effects of modernisation of BERs in the late 1990s.

This chapter introduces the debate over the role of non-competition interests under Article 101 TFEU and sets out the definitions used in this study (including competition and non-competition interests and the notion of balancing). The chapter also presents the empirical methodology guiding the study and discusses the methodological choices. It explores the methodology of systematic content analysis of legal text (‘coding’) used in the study and details the selection criteria used to comprise the database of cases.

This chapter studies the balancing function of Article 101(3) TFEU individual exemptions/exceptions. It reveals a great divergence in the frequency with which the Commission, national competition authorities, and EU and national courts have invoked and accepted the Article 101(3) TFEU, as well as their interpretations of the types of relevant benefits, the balancing process, and the intensity of control. Moreover, it uncovers the ‘death’ of Article 101(3) TFEU defence in the Commission’s practice following modernisation.

This chapter introduces the debate over the role of non-competition interests under Article 101 TFEU and sets out the definitions used in this study (including competition and non-competition interests and the notion of balancing). The chapter also presents the empirical methodology guiding the study and discusses the methodological choices. It explores the methodology of systematic content analysis of legal text (‘coding’) used in the study and details the selection criteria used to comprise the database of cases.

This chapter provides a historical overview of the development of Article 101 TFEU balancing to frame and identify the uncertainties surrounding it. The chapter begins with the EU primary and secondary law provisions, illustrating that they do not prescribe a clear balancing framework. Against this backdrop, it shows that the balancing principles have been greatly shaped by the practices of the Commission and EU Courts. It affirms that the development of the balancing principles is best understood by sorting the practices into four enforcement periods, which are then explored throughout the empirical chapters of the book. In addition to the developments at the EU level, the chapter devotes special attention to the competition law set-up and balancing approaches of each of the five Member States examined in the study.