A. Importance and main goals of Art. 101 para. 3 TFEU

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Art. 101 para. 3 TFEU has four set of exemptions of the prohibitions presented by Art. 101 para. 1 TFEU. It is placed, therefore, as the contra balance of the limitations brought upon agreements between undertakings. Consequently, its importance and range of application shifts as in accordance with the way and broadness of Art. 101 para. 1 TFEU is imposed by the EU Commission.

B. Setting and maintaining the internal market

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The Commission’s first approach on the definitions of Art. 101 para. 1 TFEU was considerably broad and formalistic. By spreading its scope, several agreements were deemed prohibited in advance. Moreover, the Commission had an exclusive competence on the application of Art. 101 para. 3 TFEU, what gave it the power to have an active part on drawing EU competition law as an important instrument of the setting and maintenance of the internal market.

C. Efficiency gains

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The Regulation 1/2003 putted an end on the Commission exclusiveness in applying Art. 101 para. 3 TFEU, now able to be used by competition authorities of the Member States. That is part of a change of perspective of the goal of competition law itself, more concerned with consumer’s welfare rather than only the internal market. The exclusive control is no longer need also because of the new approach of the Commission of the definitions of Art. 101 para. 1 TFEU. By analyzing the cases in a more complex and economical bases, the Commission have narrowed the cases confined by the prohibitions and is trying to discuss the actual competition restriction of the agreement, rather than preventing it from the start.   

Setting the discussion in an economic deeper and punctual grounds when dealing with Art. 101 para. 1 TFEU does not set the American “rule of reason” in EU competition law. There are no pros and cons in the Commission assessment of Art. 101 para. 1 TFEU, but only a more economical approach when defining if the agreement restricts or not competition, by ways of putting the case in perspective of the market in which the agreement was act upon.  If it does, the element of Art. 101 para. 1 TFEU is fulfilled and therefore the agreement is void.

It’s by Art. 101 para. 3 TFEU that the Commission will weigh the possible benefits of the prohibit agreement, as to really present a more economical approach to the situation and assess whether there are actually pro-competitive benefits, drifting away of the still very legalistic restrictions of Art. 101 para. 1 TFEU.

This benefit to the market, mainly to the consumer welfare, is the defense that can be presented by the undertaking by proving that the agreement had brought efficiency gains, or as Art. 101 para. 3 TFEU defines, agreement “which contributes to improving the production or distribution of goods” (productive efficiencies), or that promotes “technical or economic progress” (dynamic efficiencies).

The efficiency element is, therefore, the possibility of an economical assessment, valorizing the agreement and the facts in a more subjective and finalist matter, presenting itself as a useful tool to prevent the prohibition to prevent factual good agreements for the completion, in an over strict regulation (or type 1 errors).

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