Toshiba v. Commission: Do two Wrongs Make a Right? The CJEU Takes Another Step Away From Allianz Hungaria
There are few distinctions more important in EU competition law than that between the notion of a restriction “by object” – where a regulator need not demonstrate that conduct had anti-competitive effects – and the notion of a restriction “by effect,” where a regulator actually has to prove that conduct was anti-competitive. Unfortunately, as readers of this blog will doubtless be aware, a flawed, and much-criticised, 2013 judgment of the CJEU in Allianz Hungaria) threatened to render meaningless the distinction between restrictions by object and restrictions by effect. As a result, ever since the CJEU handed down its Allianz Hungaria judgment, the EU Courts have been engaged in a painstaking attempt to show deference to it, while, at the same time, moving further and further away from it. The CJEU’s judgment of 20 January 2016 in Toshiba v Commission) represents the latest chapter in this excruciating and confusing journey.
This article was originally published on Kluwer Competition Law Blog.