Guidelines and BER’s Sample Clauses

Guidelines and BER’s soft law and policy (1) Object as Subjective Intention’. 56 (Black, 2005), p119. 57 Article 81(3) Guidelines, para 23. See also Guidelines on Vertical Restraints [2010], paras 47-64. Note that the Commission allows for some hardcore restraints to fall outside of Article 101(1) TFEU in exceptional circumstances if they are “objectively necessary”, para 60. For instance, if such a hardcore restriction is objectively necessary to ensure a public ban on selling dangerous drugs or where a distributor is making substantial investments in order to gain entry in a new market. The reference to paragraph 18 of the Article 81(3) Guidelines in support of this is curious as upon its reading it appears to only be relevant to restrictions by effect. See commentary on the revised De Minimis Guidelines below. However, the Vertical Guidelines [2010], para 96, suggest that the object criterion is not just limited to hardcore restrictions. 58 Article 81(3) Guidelines, para 20. 59 Article 81(3) Guidelines, para 23. in guidelines and notices.60 Such restrictions are therefore presumed to restrict competition by object.61 It is notable that the Commission reserves to itself the ability to expand upon the types of restrictions that constitute restrictions by object.62 The question of how the object of an agreement is in fact determined is recounted in paragraph 22. According to the Commission whether an agreement has as its object the restriction of competition rests on a “number of factors”.63 These “include” the content of the agreement and objective aims pursued by it. It “may also be necessary to consider the context in which it is (to be) applied and the actual conduct and behaviour of the parties on the market”.64 It could be deduced from a reading of the Article 81(3) Guidelines that it is merely optional that the context of the agreement is considered when determining the object of an agreement. Additionally, that the context referred to is the ‘legal and economic’ context is not specifically revealed.65 Furthermore, the Commission provides that an examination of the facts underlying the agreement “may” be required, and that the implementation of the agreement is more persuasive than the formal agreement, which may not even contain an express restriction of competition.66 The ease with which the object of an agreement is found is confirmed by the fact that identifying a ‘hardcore’ restriction in an agreement labels it automatically as a restriction by object.67 All effort...