What does “by object”, in effect, mean? In search for the ultimate determination criterion

This article is dedicated to an EU competition law evergreen – by object restrictions. The CJEU established in its early case law that Article 101(1) TFEU (or its predecessors) could be infringed by restricting competition (i) by object or (ii) by effect. Once the former is present, the latter does not have to be. In other words, if an agreement restricts competition by object, it is superfluous to analyse and prove the actual restrictive effects on competition. The concept seems simple, yet it is far from it. As many other concepts, the concept of by object restrictions has developed with time. We believe that the last dozen of years has shown a particularly interesting development; recent judgements, delivered in 2023 and 2024, being no exception. It seems that the borderline between by object and by effect restriction is getting blurred and the whole concept of by object restriction more elusive, to the detriment of public as well as private enforcement of competition law. Thus, this article asks: which criteria are used in classification of a restriction as a by object one? Is there any ultimate criterion which is the most decisive in the classification process? In order to answer the questions, the article dives into case law on restrictions of competition by object. A qualitative analysis of selected (landmark) cases from Allianz Hungaria (2013) to recent judgements is conducted. The factual background of the analysed cases is presented briefly. The focus of the analysis is on the identification of criteria used by the CJEU when determining whether a restriction of competition is a by object one. The CJEU often repeats the same criteria, however, in certain cases it also adds new criteria which may (but not always are) repeated in the subsequent case law. Therefore, the qualitative analysis leads to the identification of a spectrum of criteria. Moreover, since the analysis is qualitative and not merely statistic, it also leads to the answer to the question what is, pursuant to the CJEU, the essential criterion in determination of whether a competition is restricted by object.