The Tests of Illegality under Articles 101 and 102 TFEU

This article aims to assess one of the many contributions of 'Economics and the Interpretation and Application of U.S. and E.U. Antitrust Law' by Richard Markovits to our understanding of U.S. and EU antitrust laws. That specific contribution is the tests of illegality adopted in Markovits’s study to interpret Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU). This article also examines the claim that none of these tests is an economic-inefficiency test of illegality. In order to achieve its aim, the article first comments on the “specific-anticompetitive-intent test” that is proposed to be the test of illegality under the object branch of the prohibition of Article 101 TFEU and under the abuse prohibition of Article 102 TFEU, before moving on to separate discussions of the tests of illegality in the specific contexts of Article 101 TFEU and subsequently of Article 102 TFEU. The article finds that there is still considerable ambiguity concerning some of the most fundamental concepts of antitrust law such as “competition on the merits” at least in the EU but perhaps also in the U.S. The article reaches the conclusion that there is significant scope for discussion and disagreement on what makes a conduct anticompetitive, irrespective of whether such conduct is of the type prohibited under Article 101 TFEU or of the type prohibited under Article 102 TFEU.