Guidelines on the application of Article 101(3) TFEU also give a clear idea that European Institutions are thinking more about consumers and common welfare and more about effects – based analysis in each case. For example article 9. states that:“ […] the prohibition contained in Article 101(1) may be declared inapplicable in case of agreements which contribute to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefits, and which do not impose restrictions which are not indispensable to the attainment of these objectives, and do not afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products concerned. […]” These guidelines does not obliges European Institutions to act a certain way, but nevertheless it may be inferred that this is the way European Institutions want to think in applying Article 101. It can be seen that the emphasis is on development and improvement rather than just impose fines and annul concluded agreements.
Considering the development in competition regulation and all the cases mentioned before, it is safe to say that European Institutions have abandoned a formalistic approach in implementing Article 101 TFEU in favor of a more effects-based analysis.
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