The “Public” Wrong of Cartels and the Article 101 TFEU “Object Box”

• Author: Angus MacCulloch
• DOI: 10.1177/0003603X20929120
• Published date: 01 September 2020
• Date: 01 September 2020

Article

The “Public” Wrong of Cartels

and the Article 101 TFEU

“Object Box”

Angus MacCulloch*

Abstract

The criminalization of cartel behaviorin the UK turned attention to the criminal wrong at the heart of

cartels. An understanding of the true nature of the cartel problem can also be used to develop a better

understandingof Art 101 TFEU. This articleuses the literature on the wrongfulness of cartelsto examine

how cartel behavior has the “object”of restricting competitionwithin the terms of Art 101 TFEU. It pays

particularattention to cases at the peripheryof cartel behavior. Theliterature focuses on the importance

of free markets as public institutions. Cartels are perceived as being a species of “cheating” which

deserves opprobrium as it goes against the legitimate expectations of market participants. A reex-

amination of the cartel periphery cases involving information exchange and cartel facilitationusing this

lens shows a novel understanding of how these cases fit within the Art 101 TFEU “object box.”

Keywords

cartels, criminalization, cheating, information exchange, cover bidding, cartel facilitation

Introduction

The “object” and “effect” distinction is an important feature of Art 101 of the Treaty on the Function-

ing of the European Union (TFEU). The distinction between the two concepts bifurcates the analysis of

anticompetitive agreements into those that are prohibited because they have the “object” of restricting

competition, and those that only have the “effect” of doing so. “Object” agreements have always been

treated as being the more potentially serious of the two categories, and in practical terms, “object”

analysis will always precede any analysis into an agreement’s “effects.” As the Court of Justice of the

EU first set out in STM,

1

the tests are alternatives rather than cumulative, but the Court has done

relatively little to help define what factors or forms of analysis should be used to determine what

agreements or clauses within agreements would fall within the object category.

* Lancaster University Law School, Lancaster University, Lancaster, UK

Corresponding Author:

Angus MacCulloch, Lancaster University Law School, Lancaster University, Lancaster LA1 4YN, UK.

Email: a.macculloch@lancaster.ac.uk

1.Case 56/65 Soci´et´e Technique Mini`ere (L.T.M.) v. Maschinenbau Ulm GmbH (M.B.U.) EU:C:1966:38.

The Antitrust Bulletin

2020, Vol. 65(3) 361–375

ªThe Author(s) 2020

Article reuse guidelines:

sagepub.com/journals-permissions

DOI: 10.1177/0003603X20929120

journals.sagepub.com/home/abx