The Challenge of European Competition Network Convergence in the Definition of Harm to Competition

The evolution of legal concepts central to the enforcement of competition law is a key focus of legal analysis by courts, academics and practitioners. What receives less attention, as it is still a relatively new phenomenon in the field, is how the operation of the European Competition Network (ECN) has affected the development of those concepts and specifically how convergence may occur in relation to them. This paper addresses how network enforcement on EU competition law has impacted on the notion of restriction of competition. It explores two themes, one substantive and one institutional by first, examining how restrictions of competition by object have been addressed by some National Competition Authorities (NCAs) and second, by analyzing the institutional tools that facilitate or constrain conceptual convergence. In doing so, it takes cognizance of the comment of Advocate General Wahl in Cartes Bancaires that the classification of an agreement as a restriction of competition by object must be necessarily circumscribed because 'the analytical framework that the Court is led to identify will be imposed both on the Commission and on the national competition authorities, whose awareness and level of expertise vary'. The paper first briefly outlines what is meant by restriction by object before turning to look specifically at developments in relation to MFN/RPM clauses and, more briefly, pay-for-delay clauses. It does not have regard to the role of national courts (save incidentally) but does address the role of the preliminary reference procedure in bringing the enforcement practices of the NCAs before the Court of Justice of the EU (CJEU). The paper then turns to institutional tools and constraints within the legal architecture of the ECN, specifically in light of proposed reforms, before concluding.