‘Naked’ and ‘by object’ restrictions of competition and Article 102 TFEU—the emergence of an epithet in EU Competition Law

Abstract The study engages both from a normative and a positive law perspective with the ‘dark matter’ of Article 102, the concept of ‘naked restrictions’ and other ‘by object’ restrictions in Article 102 Treaty on the Functioning of the European Union (TFEU). Through analysis of recent Court of Justice of the European Union and General Court jurisprudence, alongside evolving Commission positions, we argue that the Commission’s Draft Guidelines’ elevated treatment of ‘naked restrictions’ signals a strategic recalibration of the ‘more economic approach’ in Article 102 TFEU interpretation and enforcement. This article contributes to the hermeneutics of Article 102 TFEU by examining the intersection between economic thinking (focused on effects analysis and the error-cost framework) and the legal-moral core of Article 102 TFEU (adopting a law and ethics perspective), offering insights into the ontological content of ‘restriction of competition’. We first trace the emergence of the ‘naked restrictions’ concept in competition law, with particular focus on its development within Article 102 TFEU jurisprudence. Secondly, we explore the positioning of ‘naked restrictions’ among other analytical categories used to identify abusive conduct, establishing a conceptual taxonomy. Thirdly, we engage with key hermeneutical issues raised by the Commission’s Draft Guidelines on Article 102, examining how the ‘naked restrictions’ concept reshapes the theoretical and evidential framework for determining abusive conduct, contextualized within recent EU court jurisprudence. Finally, we highlight the significance of recognizing ‘naked restrictions’ and their distinctive ethical character as competition law offences, exploring implications for the ‘more economic approach’ debate regarding exclusionary abusive conduct.