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Studies in European Economic Law and Regulation25
Bernadette Zelger
Restrictions of EU
Competition Law
in the Digital Age
The Meaning of 'Effects' in a Digital
Economy

Studies in European Economic Law and
Regulation
Volume 25
Series Editor
Kai Purnhagen, University of Bayreuth, Bayreuth, Germany
Editorial Board Members
Alberto Alemanno, HEC Paris, Paris, France
Mads Andenaes, University of Oslo, Oslo, Norway
Stefania Baroncelli, University of Bozen, Bozen, Italy
Franziska Boehm, Westfälische Wilhelms-University Münster, Münster, Germany
Anu Bradford, Columbia Law School, New York, USA
Jan Dalhuisen, King
Michael Faure, Maastricht University, Maastricht, The Netherlands
Jens-Uwe Franck, Ludwig-Maximilians-University Munich, Munich, Germany
Geneviève Helleringer, University of Oxford, Oxford, UK
Christopher Hodges, University of Oxford, Oxford, UK
Lars Hornuf, University of Bremen, Bremen, Germany
Moritz Jesse, Leiden University, Leiden, The Netherlands
Marco Loos, University of Amsterdam, Amsterdam, The Netherlands
Petros Mavroidis, Columbia Law School, New York, USA
Hans Micklitz, European University Institute, Florence, Italy
Giorgio Monti, European University Institute, Florence, Italy
Florian Möslein, Philipps-University of Marburg, Marburg, Germany
Dennis Patterson, European University Institute, Florence, Italy
Wolf-Georg Ringe, University of Hamburg, Hamburg, Germany
Jules Stuyck, Katholieke Universiteit Leuven, Leuven, Belgium
Bart van Vooren, University of Copenhagen, Copenhagen, Denmark

The series
analysis of European Economic Law. The series
topics within economics law including, but not limited to, the relationship between
EU law and WTO law; free movement under EU law and its impact on fundamental
rights; antitrust law; trade law; unfair competition law; nancial market law; con-
sumer law; food law; and health law. These subjects are approached both from
doctrinal and interdisciplinary perspectives.
The series accepts monographs focusing on a specic topic, as well as edited
collections of articles covering a specic theme or collections of articles. All
contributions are subject to rigorous double-blind peer-review.

Bernadette Zelger
Restrictions of EU
Competition Law
in the Digital Age
The Meaning of Effects

Bernadette Zelger
Department of European Law and Public International Law
University of Innsbruck
Innsbruck, Austria
ISSN 2214-2037 ISSN 2214-2045 (electronic)
Studies in European Economic Law and Regulation
ISBN 978-3-031-31338-7 ISBN 978-3-031-31339-4 (eBook)
https://doi.org/10.1007/978-3-031-31339-4
Diese Publikation wurde mit
Forschung der Universität Innsbruck gedruckt.
©
AG 2023
This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether
the whole or part of the material is concerned, speci
illustrations, recitation, broadcasting, reproduction on micro
transmission or information storage and retrieval, electronic adaptation, computer software, or by
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The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

This piece considers case law, literature
et aluntil May 2023.

T H A N K S
T O
Mum, Dad, Bernhard jun., Philipp
Univ.-Prof. Dr. Walter Obwexer
my doctoral supervisor
the Austrian Academy of Sciences (Österreichischen
Akademie der Wissenschaften)
for funding my doctoral thesis being the basis of this
monograph
the Max-Planck Institute for Innovation and
Competition in Munich
for the opportunity to conduct research there
the University of Innsbruck
for funding this research stay in Munich
as well as
Univ.-Prof. Dr. Werner Schroeder, LLM (Berkley) and
Assoz.-Prof. Priv.-Doz. Dr. Manfred Büchele
for academic discussion, valuable input and feedback
RA Dr. Peter Madl and RA Mag. Constantin Benes,
LLM (Columbia)
who trained me in thinking and working as a lawyer
RA Dr. Hanno Wollmann, LLM (Exeter)
who I owe my fascination for European Competition
Law
Dr. Maria Ioannidou
LLB, LLM (Athens), MJur, MPhil, DPhil (Oxford)
who encouraged me in pursuing an academic career
and coined my academic work
Mag. Marija Bili
who helped me proofreading this monograph
Sabine Heis, Andrea Gruber, Gabriele
Pedro
for all their support in daily working life

Foreword
EU Competition Law has been at the heart of the EU internal market. Digitisation
has been transforming and challenging EU legal doctrine. EU competition law, as we
learn from Dr. Zelger
developments have given rise to a number of technological tools, whose challenges
and bene
coherently implement and translate the challenges of digitisation into rather static
legal doctrine. Dr. Zelger
with a highly topical book, grounded in a robust doctrinal analysis with solid
references to technology and economic theories. How to implement these challenges
and how to translate them into legal doctrine is the rst lesson we can learn from
Dr. Zelger
ramications of digitisation and doctrinal requirements, Dr. Zelger masterfully
analyses, explains and gives guidance on the implementation of challenges of
digitisation on EU competition law. This is the second lesson we may learn from
Dr. Zelger
on the effects of law and its interpretation can provide us with insights into how to
solve the challenges of digitisation in EU competition law.
This book is unique in many ways. What makes it attractive to both practitioners
and academics is its rigorous application of an effects doctrine as a remedy for the
problems resulting from digitisation. This rigorous application may also be reviewed
critically. One may have wished to read a bit more about the background of the
effects analysis, how are these measured, which data is taken into account and what
are the limits of such an approach. One may have also wished for some introduction
of alternatives and a critical review of these to make the claim of a superiority of
effects analysis stronger.
ix

x Foreword
I am happy and proud to include Dr. Zelger
to her future work on this and related topics.
University of Bayreuth, Bayreuth,
Germany
March 2023
Kai P. Purnhagen

Acknowledgement
Diese Publikation wurde mit
Vizerektorats für Forschung der Universität Innsbruck gedruckt.
xi

Contents
1 Introduction 1
1.1 General Remarks 1
1.2 Research Questions and Outline 2
1.3 Background 5
1.3.1 Setting the Scene . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
1.3.2 The Underlying Conceptual Approaches
of Article 101 and 102 TFEU 8
2 Competition Law, Economics and the
Approach 11
2.1 Setting the Scene . . 11
2.2 Pluralism and the Goals of Competition Law:
Their Meaning for the Use of Economics in Competition Law . . . . 13
2.2.1 General Remarks . . 14
2.2.2 Goals, Values and Other Normative Foundations: The
Competition Law Mosaic of Diversity . . . . . . . . . . . . . . . . 17
2.3 The
of Competition Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.4 Conclusions . 21
3 Effects and Article 101 TFEU 23
3.1 The Concept of Restrictions by 24
3.1.1 General Remarks . . 24
3.1.2 Object vs. Effect: Pros, Cons, the
Approach 29
3.1.3 The Role of Economic Theory and Competition Policy . . . 32
3.2 Object Restrictions: General Principles . 35
3.3 Object Cases c
Outcome . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
3.3.1 Horizontal Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . 39
3.3.2 Vertical Agreements 41
xiii

xiv Contents
3.3.3 Making Sense of the Case Law? . . . . . . . . . . . . . . . . . . . . 45
3.4 The Notion of 46
3.4.1 Peeperkorn . 47
3.4.2 AG Bobek 48
3.4.3 The Compatibility of the Two Tests of
and 48
3.4.4 Content, (Legitimate) Objectives and the Legal and
Economic Context:
and Pro-Competitive Aspects under
Article 101(1) TFEU 49
3.5 ‘
Article 101(3) TFEU 53
3.6 ‘ 54
3.6.1 General Remarks . . .... ... .... ... .... ... . 55
3.6.2 T-Mobile . . . 55
3.6.3 Allianz Hung 56
3.6.4 Slovak Banks . . . . . 58
3.6.5 Cartes Bancaires 59
3.7 The Age after 60
3.7.1 Maxima Latvija . 60
3.7.2 Hoffmann-La Roche v Autorità Garante della
Concorrenza e del Mercato . . . . . . . . . . . . . . . . . . . . . . . . 62
3.7.3 Budapest Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
3.7.4 The Pharma Cases (Generics and Lundbeck) . 65
3.8 The 71
3.8.1 The Concept of Appreciability 71
3.8.2 The 72
3.8.3 Object Restrictions and Appreciable Effects 73
3.9 Conclusions . 74
4 Effects and Article 102 TFEU 77
4.1 The Notion of Abuse: Are There by Object and
by Effect Abuses? . 78
4.1.1 General Remarks, Principles and Competition Policy . . . . . 78
4.1.2 The
Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
4.2 Different Types of Abuse: An Overview . . . . . . . . . . . . . . . . . . . 85
4.3 Object Abuses
Restrictions 88
4.4 Object Abuses
Context-Speci ..... .... .... ..... .... 91
4.4.1 Exclusive Dealing and Practices Leading
to 93
4.4.2 Loyalty Rebates 105
4.4.3 Tying and Bundling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

7
Contents xv
4.4.4 Predatory Pricing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
4.4.5 Removal of a Railway Track . . . . . . . . 129
4.5 The Concept of Appreciability,
and Article 102 TFEU . . 130
4.6 Conclusions . 132
5 Particularities of the Digital Economy 135
5.1 The Age of Digitisation: Setting the Scene 135
5.2 Online Markets, E-Commerce and Digital Platforms:
Challenges in a Digital Economy . . . . . . . . . . . . . . . . . . . . . . . . . 139
5.2.1 General Remarks . . 139
5.2.2 Online Platforms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
5.2.3 Online Markets, E-Commerce and Free-Riding 149
5.3 Chapter 5 Conclusions . . . 151
6 Competition Cases in the Digital Economy 153
6.1 Assessment Categories 153
6.2 Article 101 TFEU Cases in the Digital Economy . 158
6.2.1 General Remarks . . 158
6.2.2 Eturas 159
6.2.3 Commission Cases in
Philips 160
6.2.4 Coty 162
6.2.5 Most Favoured Nation Clauses:
NRS 165
6.2.6 Interim Conclusion 172
6.3 Article 102 TFEU Cases in the Digital Economy . 174
6.3.1 General Remarks . . 174
6.3.2 Google Shopping . . . 176
6.3.3 Google Android 182
6.3.4 Google AdSense . . . 190
6.3.5 Interim Conlusion 192
6.4 Chapter 6 Conclusions . . . 195
7 Conclusions 197
7.1 An Overall Analytical Framework of Articles 101 and 102? . 19
7.2 A Hymn to Effect Analysis 202
Primary Sources
EU Legislation and Policy Documents . . . . . . . . . . .
Cases .
Court of Justice
General Court
Commission Cases . .
Pending Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
AG Opinions . . . . .

xvi Contents
Commission Pending Investigations and Proocedings . . . . . . . . . . 211
Press Releases, Fact Sheets and Online Content
Decisions of National Competition Authorities . . . . . . . . . . . . . . . 211
US and European National Court Decisions
Bibliography
Secondary Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
Monographies, Commenteries, Book Contributions and Articles . .
Government and Ministry White Papers, Reports, Working Papers . . . . . 219
Speeches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
Online Contributions

Abbreviations
AEUV Vertrag über die Arbeitsweise der Europäischen Union
AG Advocate General
CMLR Common Market Law Review
ECJ European Court of Justice
e.g. exempli gratia
et seqet sequens
EU European Union
EuGH Europäischer Gerichtshof
EuR Europarecht
FCO Federal Cartel Ofce (
GC General Court
i.e. id est
MFN Most Favoured Nation Clause
ÖZK Österreichische Zeitschrift für Kartellerecht
RPM Resale Price Maintenance
TFEU Treaty of the Functioning of the European Union
US United States of America
VBER Vertical Block Exemption Regulation
xvii

1
Chapter 1
Introduction
1.1 General Remarks
Competition law, as law in principle, cannot be applied in the abstract.
1
Therefore, it
is inherent to practicing law that the underlying facts and specic circumstances of a
case are one aspect being decisive with respect to whether a certain measure falls
within the realm of the law.
Apart from
of a measure from a competition law perspective is the underlying economic reality
and context within which a measure occurs and needs to be assessed. As the way
markets function is explained by economic theory and models, themselves being
volatile disciplines prone to change and reaction to socio-political and societal
developments and alterations over time, it becomes apparent that a solid framework
for competition law assessment is inuenced by various aspects as regards its
ﬂexibility. Take for example the industrial revolution in the nineteenth century,
which undoubtedly had a great effect on society by changing economic circum-
stances and social conditions. Arguably, digitisation and the novel economic phe-
nomena inherently linked thereto have a similar great impact not only on society and,
for example, traditional work
2
but also on the way our economic system functions.
Economic developments and phenomena as, for example, the evolvement of digital
markets and, in this respect, American technology companies acting as multi-sided
platforms, such as
the acronym
1
Case C-519/04 P,
T-93/18,
ISU), para 77.
2
Re-imagining Work
Affairs (April 2015), p. 16, available at https://www.bmas.de/EN/Services/Publications/arbeiten-
4-0-greenpaper-work-4-0.html>
©
B. Zelger,
European Economic Law and Regulation 25,
https://doi.org/10.1007/978-3-031-31339-4_1

2 1 Introduction
Competition law, in the broadest sense, safeguards the functioning of our market
economy. Therefore, it faces challenges as regards the development and evolvement
of economic phenomena. Against this backdrop, this monograph aims to examine
the role and meaning of
restrictions of competition law in the context of a changing economic reality due to
digitisation. Hence, light shall be shed on the
necessary exercise to be carried out in order to establish a by object restriction or
prima facie
call for new ways of thinking or conceptualising competition law. In this respect
however, an
infringements might be a useful tool when testing and/or re-thinking the law.
1.2 Research Questions and Outline
The debate concerning the differentiation between
infringements of competition has existed since the birth of EU competition law,
that is, Article 101 and 102 TFEU. Moreover, whether effects and a negative impact
on competition play a role also in the context of object infringements or
abuses, somehow runs in the same vein. Insofar, the debate and controversies
surrounding the latter are, arguably, anything but new. However, considering
digitisation, recent market developments as well as the particularities of the digital
environment and online markets, the debate arguably ared up again.
Furthermore, although extensive research exists as regards the notion of by object
infringements of competition, there is no systematic review of this topic covering
both competition provisions, namely Articles 101
what this monograph aims to with respect to the analogue world and analogue cases
while also covering new phenomena owed to the digital revolution and its impact on
and altering of the functioning of traditional markets. Hence, this piece aims to shed
light on
restriction or a behaviour qualied as ine and
online world by illustrating the current legal framework by means of an extensive
analysis of the Court of Justice ’
so shall shed light on the above-mentioned
conducted in order to establish a
well as the extent of the latter being informed by economic theory and thus potential
anticompetitive effects of a measure. Against this backdrop, it will be argued that
while some measures might, in an ofine context, qualify as a by object restriction of
competition or a
behaviour may, in the digital environment, require a rened assessment and thus not
qualify as object restriction or ned assessment and
different outcome are owed to the fact that the functioning of digital markets
might deviate from those (economic) rules and standards that we know from the
analogue world. In other words, the different potential effects of a practice in this

new economic environment might require a different assessment of the very same
behaviour or practice in the online world.
1.2 Research Questions and Outline 3
Moreover, while it is clear that in the context of
competition law there is no need to prove actual anticompetitive effects
or transaction that is incapable of having anticompetitive effects is not subject to EU
competition law
3
at all. Hence, in the context of restrictions by object, effects do
appear, be it in form of
of agreements of minor importance in form of an
market,
4
to name few examples only.
Against this backdrop, Chap. 2 of this monograph will provide an overview of the
normative foundations of competition law and its goals, with the aim to put the
occurrence of the concept of the more economic approach, the role of economics and
of actual effects in competition law assessments into a holistic perspective. This is
necessary in order to draw a holistic picture and illustrate the mosaic of normative
values and multiple goals competition law is aiming to serve in a democratic society.
Moreover, these multiple objectives might explain why competition provisions do
and must show a certain degree of exibility
5
thereby providing a framework
capable of adapting to changes gradually happening over time. This seems crucial
for the meaning and interplay of economic analysis and effects as a means to
establish competition law infringements. Thus, Chap. 2 shall provide the backdrop
in which the more detailed analysis as conducted in Chaps. 3 and 4 is embedded.
Chapter 3 and 4 will deal with effects in the establishment of Article 101(1) and
102 TFEU infringements. As regards Article 101 TFEU the focus lies on the
meaning and role of the latter in the context of by object restrictions.
6
In this context,
the role of effects in the
object restriction as well as the distinction between the concepts of by object and by
effect restrictions is indispensable. As regards Article 102 TFEU the distinction of
the form and effects-based approach shall be scrutinised with a focus on effects as
regards the former category mentioned. The aforementioned shall, inter alia, be done
by illustration and detailed scrutiny of the relevant case law concerning cases
occurring in the ine
that the legal framework developed by the Courts of the European Union (
ECJ and the General Court, both together referred to in the following as
for the establishment of
3
Colomo (2020b), p. 16.
4
Commission Notice on agreements of minor importance which do not appreciably restrict com-
petition under Article 101(1) of the Treaty on the Functioning of the European Union (
Notice
5
As recognised by
ﬂ
deliberate room left
calibrate the implementation of the rules in a way it deemed appropriate
6
As the role of effects in by effect cases seems rather obvious: they need to be proved.

restrictions pursuant to Article 101(1) TFEU as well as
according to Article 102 TFEU, is indeed a uniform and consistent one.
4 1 Introduction
Chapter 5 will then illustrate the changes digitisation brought as regards the
digital economy and the functioning of digital markets. It will be shown why markets
online differ from markets ofine and why established classical economic theory and
models might not necessarily provide a perfectly suitable toolkit for the assessment
of a measure in the online environment. Undoubtedly, the changing economic
environment, that is, economic trends and phenomena evolving due to digitisation
7
(such as, for example, multi-sided platforms in any form whatsoever) seem partic-
ularly interesting and necessarily need to be taken account of when trying to dene a
coherent approach for the establishment of prima facie infringement of competition
law and the meaning and role of effects in this respect. Against this backdrop, the
relevant cases which have already occurred in the digital environment, that is, in
‘ 6. Therefore, prominent cases such as
the Google triad (
8
will be
subject to detailed scrutiny with the aim to conclude whether the rules and standards
established with respect to practices occurring in the of
the assessment of the very same measure in an online context.
This monograph will therefore provide for an analysis of an overall, consistent
and coherent analytical framework of both, Article 101 and 102 TFEU. In order to do
so it is indispensable to analyse the status quo of the legal framework as established
by means of the case law of the analogue world and thus in the context of traditional
markets. Against this backdrop, while it will be concluded that the framework is
indeed a consistent one, those cases that have already occurred and been decided in
the online context will be subject to scrutiny. This is done with the aim to not only
provide an analysis of whether our rules and standards from the ofine world are
transferred adequately to competition cases in the digital environment (i.e. digital
markets), but also to map out the prospective developments necessary in order to
maintain overall consistency. In other words, I aim to conduct an analysis of the
concepts and underlying principles of Article 101 and 102 TFEU aiming to
(i) conclude on a possible status quo as well as (ii) provide a glance into the future
trying to propose a viable approach in order to meet the challenges as imposed by
digitisation and, from a competition law perspective, a digital economy while at the
same time maintaining consistency as regards our legal assessment framework.
Chapter 7 will provide for an
ﬁndings. Therefore, while providing for an extensive analysis of the EU courts
law concerning
sheds light on the notions of by object restriction and
7
As mentioned above, e.g. the role of digital markets, FAANG as multi-sided platforms etc.
8
Case T-612/17
763 (
[2022] ECLI:EU:T:2022:541 (Google Android GC
Commission

digital markets as well as the (future) role of an effects-informed context analysis in
this respect as well as the need for a deliberate, thoughtful use of the latter.
1.3 Background 5
1.3 Background
1.3.1 Setting the Scene
The fascinating component in competition law is that it can in no way
without economics
9
when establishing and assessing a measure presumably being at
odds with the competition provisions, namely Article 101 and 102 TFEU. Provoc-
atively speaking and borrowed from
tition law is so obvious that it is hard to believe that ever an interpretation or
application of competition law could arise that was not based on economic
thinking
10
Hence, the intertwining of the law and economics seems inherent to competition
law.
11
Furthermore, the idea of eld for
undertakings to compete on the merits lies at the roots of economic theory and the
notions of
possible to deal with a measure from a competition law perspective without the
consideration of economic theories and models being necessary tools in order to
assess a certain behaviour adequately. Put differently, in order to assess whether a
measure is detrimental to competition and therefore harmful from a competition law
perspective, it is necessary to know about its actual or potential effects. In this
respect, however, the fact that economic science and theory are themselves volatile
disciplines, prone to change and reaction to socio-political as well as societal
developments and alterations over time further shows the complexity of competition
law assessments and highlights the necessity and indispensability of a exible
system.
Moreover, the difﬁculties as regards competition law and economics seem not
only linked to the nature of competition law, but also to its various goals covering
economic, political, social and moral objectives. In this context, economic thinking
seems to serve as
worldwide not only warranting adequacy with respect to competition law assess-
ment, but also serving as
effect and a focal point for antitrust enforcement
12
9
Colomo (2014), p. 5; Ackermann (2017), p.523; Colomo (2018a), p. 13.
10
Wils (2014), p. 9.
11
Ackermann (2017).
12
Ezrachi (2017), p. 59.

6 1 Introduction
Therefore, the interplay of the law and economic reality when it comes to the
application of competition law provisions is especially challenging
13
and the extent
of effect analysis required with respect to the legal assessment of facts has ever since
been a highly debated topic.
14
This may also explain why the case law regarding the
interpretation of Articles 101 and 102 TFEU
changing and developing
15
When looking back in history, the importance of economics in the application of
the competition law provisions has constantly been growing. Academic commenta-
tors and practitioners have been observing a shift in the approach over the years.
16
Whereas the initial approach
based
17
the subsequent trend developed by the Commission and the EU courts,
the
sound economic principles. That is, arguably, a more effects-based analysis in order
to establish a breach of the Treaty competition rules.
18
This is somewhat misleading as one is tempted to
a
an actual
heading
nomics does not necessarily and consequently lead to an increase of effect-cases. Put
differently, it is the sound economic theories (as the
about the potential or likely effects of a measure), which decide upon whether an
effect analysis is actually required, or whether a measure is inherently
detrimental to competition so that a treatment under the
based ed. Furthermore, it cannot be overstated that also
enforcement priorities and thus policy decision are decisive in this respect.
Therefore, it is the interplay of economic theory but also policy considerations
and enforcement priorities of competition authorities investigating that is crucial
when it comes to nding the right balance as regards an adequate and effective
implementation of effect-analysis in competition law enforcement. The
nomic approach
means to an end in shaping the role of effects or effect-analysis, but not, however, as
an end in itself.
Furthermore, the debate concerning the
lines and demand of accuracy in competition law decisions, on the one hand, as well
13
Colomo (2014), p. 5.
14
See e.g. Jones (2010), pp. 655–
15
Peeperkorn (2017), para 5.
16
Gerard (2012), p. 18; Kroes (2005); Report by the EAGCP,
(July 2005).
17
Peeperkorn (2016), pp. 389, 393. Arguably, one reason for that might be the in
competition law and the country
European competition law.
18
Ibid, see also Yi Heng (2016), p. 179; Monti (2010), p. 1.

as the need for a somewhat exible framework inherently required by the nature of
competition law, as
of our interests, [but] not inherent to the law
19
on the other hand. In this light, the
shift towards an approach based on sound economics, that is
(as there are different levels where effects might come into play)
20
—
sis on the role of the actual effects a measure might have, was a welcomed one.
1.3 Background 7
Moreover, there is no doubt that the central role of economics is widely
recognised in all competition law jurisdictions.
21
As mentioned above, considering
all characteristics and goals of competition law, economic thinking, in various
competition law systems worldwide, serves as
warranting adequacy of competition law decisions by serving as
mark
22
In addition, competition law provisions tend to consist of broad and vague legal
terms,
23
a fact that is
undetermined legal notions in European Union Law is no peculiarity of the compe-
tition provisions, but rather a characteristic of the Treaties of the European Union.
24
Secondly, considering the multiple goals, complexity and interconnection with other
disciplines and interests (for example, economics, politics or social agendas) the
framework provided by competition law must
ﬂexibility, that is, discretion and policy considerations. This is anything but new as
already at the end of the nineteenth century, namely, in
noticed that
[which] meant that the controls had to be exible, leaving signicant
discretion to decisionmakers [
circumstances
25
(emphasis added).
Looking at the EU Treaty provisions, Article 101(1) TFEU prohibits agreements,
decisions by associations of undertakings and concerted practices, which may affect
trade between Member States and have as their object or effect the prevention,
restriction or distortion of competition within the internal market. The Treaties
themselves do not contain any denition of the criteria set out in Article
101(1) TFEU. In other words, they do not provide,
discerns an
between Member States
or
26
19
Ezrachi (2017), p. 49.
20
See below Sect. 2.2.1.
21
Blair and Sokol (2005), p. 14.
22
Ezrachi (2017), p. 59.
23
Colomo (2018b), pp. 21 and 23; Maher (2000), p. 161; Talbot (2016), p. 271.
24
Colomo (2014), p. 23.
25
Gerber (1992), p. 435.
26
Witt (2016b), p. 439.

8 1 Introduction
The same is true for Article 102 TFEU, which prohibits any abuse of one or more
undertakings holding a dominant position within the internal market or within a
substantial part of it insofar as it may affect trade between Member States. The
provision contains no denition of, for example, when an undertaking should be
considered
27
catalogue provided
in its second paragraph exemplifying what could constitute an
sures, themselves being vague legal terms
28
(as, for example, no hint of what might
constitute an
Unsurprisingly, the EU courts as well as the European Commission (
sion lled
competition provisions with
29
A fact
that is inherent to the nature of EU legal framework and thus also true with respect to
other areas of European Union law.
30
Moreover, the provisions and their concepts
within are still subject to controversy and court decisions today.
31
1.3.2 The Underlying Conceptual Approaches of Article
101 and 102 TFEU
Looking at the TFEU competition provisions, there are two distinct conceptual
approaches when it comes to the application of Articles 101 and 102 TFEU, the
so-called
(form-based) approach.
32
With respect to the former, behaviour needs to be assessed
in light of the given circumstances and with respect to its actual effects. Regarding
the latter however, the nature of such conduct-oriented approach is that certain
27
See for example Case T-83/91
and Padilla (2013), pp. 256 et seq.
28
Wils (2014), p. 13.
29
Witt (2016b), p. 439; Zalewska-Glogogwska (2017), p. 130; Talbot (2016), p. 271.
30
In the context of the free movements of goods, for example, take the ECJ
74
Branntwein
[1993] ECLI:EU:C:1993:905.
31
On the concept of
Decision of 12 December 2018 (T-691/14), on appeal Cases C-201/19 P etc.
v Commission
C:2021:243 (Lundbeck). See also e.g. Killick and Jordan (2014); Nazzini and Nikpay (2014). On
the controversy regarding a too formalistic approach vs. a more economic approach in the
application of Article 102 TFEU see,
Whish and Bailey (2018), p. 182; opposite view: Wils (2014).
32
See in this respect for example: Pablo Ibàñez Colomo,
“ https://
chillingcompetition.c
approach-to-article-102-tfeu/>

conduct is prohibited without any consideration of the actual effects of a respective
behaviour on competition, because it is considered being very likely to harm
competition. The core difference between the two concepts is the extent to which
an analysis of the actual effects of the alleged anticompetitive measure is required.
33
Therefore, considering a broader and more fundamental perspective: The dichotomy
of the latter approaches mirrors the tension between the notion of
one hand,
34
as well as the notion of
1.3 Background 9
With respect to Article 101(1) TFEU the illustrated distinction of the two
concepts can be found in the Treaty provision itself. The very clear wording of
Article 101(1) TFEU stipulates two alternatives thereby excluding the concept of
object restrictions from a full-analysis of a measure
the concept of effect infringements as its ’
35
Therefore,
where an agreement has as its object the restriction of competition it is not necessary
to prove actual anticompetitive effects.
36
However, how much
analysis
with the concept of a full effect analysis? An exercise, which is still subject to debate
and court proceedings nowadays.
37
With respect to Article 102 TFEU, however, there is no such formal distinction of
object and effect infringements within the Treaty provision. Furthermore, the qual-
ication of certain behaviour as
object
Commission.
38
However, in light of the given case law, the fact that a practice can
restrict competition by object or effect is also true in the context of Article
102 TFEU.
39
A
example, exclusive dealing and loyalty rebates, has ever since been applied in the
context of Article 102 TFEU too.
40
Another example provides predatory pricing,
where the ECJ has established the rule that a low price quali
33
Jones (2019), pp. 215 et seq.
34
Ibid.
35
Case 56/65 STM),
para 249.
36
STM
Nederlandse Mededingingsautoriteit
and Bailey (2021), p. 125.
37
See e.g.
25 (
38
Guidance on the Commission
abusive exclusionary conduct by dominant undertakings [2009] OJ C45/7 (
102 Enforcement Priorities
39
Colomo and Lamadrid (2017), p. 9.
40
Case 85/76
LaRoche
respect to predatory pricing (

case a dominant rm sells below average variable costs.
41
Moreover, another
practice that has recently been condemned as abusive by object provides the
dismantling of a railway track.
42
To conclude, some practices have indeed been
declared
43
unless
objectively justied.
10 1 Introduction
In this respect for example
44
distinguishes between practices subject to
rules and other practices which are subject to standards. Whereas the latter requires
an analysis of the impact of the practice in question, or put differently, requires an
analysis of the circumstances and effects as necessary pre-requisite in order to
establish an infringement of Article 102 TFEU; with respect to the former, a
‘ ed) rule
45
applies, as they are
nature
46
However, a too formalistic approach in the application of Article
102 TFEU has been subject to persistent academic criticism and debate
47
; regarding
rebates especially since its establishment in the ECJ landmark judgement in
mann LaRoche.
48
This criticism and the EU courts
49
and
British Airways
50
were followed by the
102 Enforcement Priorities
51
in 2008. After the General Court’
in
52
in 2014, the discussion ared up again as the GC
step away from the
53
In light of the above, particularly when considering recent developments in digital
markets and challenged practices occuring within the latter, the role and meaning of
effects in the context of the establishment of
ments as well as the potential advantages of a full effect-anaylsis (as conduted in the
context of by effect restrictions), seem worth being subject to an in-depth analysis.
41
AKZO
42
Case T-814/17
nian Railways
12 ( ).
43
Case C-413/14 P
Wahl ECLI:EU:C:2016:788, para 80.
44
Colomo (2014), p. 4.
45
A ﬁ —
(i.e. competition law) can be rebutted by the respective undertaking concerned.
46
Ibid.
47
Colino (2017), p. 18; Colomo (2014), Whish and Bailey (2021), p. 204; opposite view:
Wils (2014).
48
Hoffmann LaRoche
49
Case T-203/01
II-407
50
Case C-95/04 P
ways) and Case T-219/99
Airways GC
51
Guidance on Article 102 Enforcement Priorities
52
Case T-286/09 Intel
(2014), p. 521.
53
See e.g. Colino (2017), p. 18.

11
Chapter 2
Competition Law, Economics and the ‘More
Economic Approach’: The Necessity of a
Broader Perspective
This chapter sheds light on the normative values and goals of competition law. It will
be shown that competition law goals have always been multiple ones not only
serving the economy, but rather society as a whole. Put differently, competition
law should be seen as a means to serve society and a liberal democracy not being
driven by economic objectives only. However, a focus on economic purposes and
goals makes sense from a consistency perspective, economic theory serving as the
‘
shed light on the increasing importance of economics, that is, economic theories and
thinking by means of the Commission
nomic based approach
2.1 Setting the Scene
The competition provisions lie at the heart of the European integration project. Their
goal is to create an internal market. Therefore, they act as corresponding rules to
those related to the fundamental freedoms of the European Union, namely the free
movement of goods, persons, services and capital within the European Union.
1
These fundamental freedoms are seen as cornerstones for the promotion and creation
of the European Single Market by eliminating nation-state barriers. In addition to
these obligations, which are addressed to the Member States, the complementary
function of the competition law provisions is to also prevent obstacles to the
integration process imposed by private undertakings in their economic capacity.
2
1
Terhechte, Article 3 EUV in Grabitz et al. (2020), para 41.
2
Sauter and Schepel (2009), p. 2; Gerard (2012), p. 5.
© The
B. Zelger, Restrictions of EU Competition Law in the Digital Age, Studies in
European Economic Law and Regulation 25,
https://doi.org/10.1007/978-3-031-31339-4_2

Therefore, the latter rules exclusively apply to undertakings
3
but not the State as such
or any of its
4
Furthermore,
the State aid rules as well as further obligations of the Member States relating to the
adherence to the Treaty in general
5
as well as to the compliance with the competition
law provisions
6
contribute to an overall set of rules warranting and serving the idea
of the establishment of an internal market and
not distorted
7
Arguably, this echoes the role and function of competition law in a
liberal democracy.
12 2 Competition Law, Economics and the
When it comes to the application of the competition law provisions, it nowadays
seems apparent, that economics must play a prominent role in competition cases.
However, in the early days of European competition law, the role of economics was
rather subordinate, and the law developed in a fairly formalistic manner.
8
In this
sense, the law was strongly criticised for being guided
nature
9
However, beginning in the middle of the nineties of the last century, this
approach started to change and the Commission committed itself
10
to a
economic
approach to European competition law, which is not
on sound economic principles
11
Thus, it seems that the ’
gave green light for the age of increased usage of economics and economic theory in
EU competition law.
There is no cut-off date of the introduction of the
However, there is no doubt that
was a strong advocate of the gure
played a major role in increasing the impact of economic theory on the application of
the competition law provisions. However, all other aims competition law is tempting
to serve, that is, political, social and moral goals cannot entirely be left aside. Rather
3
Sauter and Schepel (2009), p. 75. For the purpose of the application of the EU competition law
provisions, any entity engaged in an economic activity, that is, an activity consisting in offering
goods or services on a given market, regardless of its legal status and the way in which it is
quali
pro
(being the counterpart of the exercise of public powers), they might qualify as undertaking.
4
However, the State can still qualify as
approach to the deﬁ
5
That is, Art 4(3) TFEU (duty of sincere cooperation) as well as 106 TFEU (compliance with the
Treaties).
6
Ibid.
7
Consolidated version of the Treaty on European Union
internal market and competition (2008) OJ C115/309.
8
Whish and Bailey (2021), pp. 2 et seq.; Gerard (2012), p. 2.
9
Ibid; see also, for example, Kallaugher and Sher (2004), p. 263; Vickers (2003), p. 95; Kolasky
(2002), p. 533; Hawk (1995), p. 973; Korah (1986), p. 85.
10
Monti (2003):
interpretation of the rules based on sound economic principles.
11
Monti (2001).

it is necessary to consider the normative foundations, values and goals of competi-
tion law as it seems apparent
applying competition law is dependent on the goals that competition law is
attempting to serve
12
2.2 Pluralism and the Goals of Competition Law: Their Meaningfor the Use of
As will be seen in the following, the multitude of the competition law goals is
systemic and inherent to the meaning and role of the law in a liberal and democratic
society. Provocatively speaking:
nonuniversal, changing, and specic to particular countries at particular times
13
In
other words, as
laws around the world, being rooted in the domestic landscapes, echo a wide range
of interests and enforcement policies
14
In a further step, it will be argued that the notion of the
led to a change in the focus of the European competition law goals and actually
narrowed it down aiming to predominantly enhance
integration
15
From the perspective of legal consistency, such focus seems gratify-
ing, as it eliminates potentially conicting economic goals, such as, for example the
efciency or total welfare goal on the one hand, as well as the consumer welfare
standard, on the other hand.
16
Moreover, the emphasis of competition law goals on
efciency and welfare objectives makes economics the
tor
effect
17
2.2 Pluralism and the Goals of Competition Law: Their
Meaning for the Use of Economics in Competition Law
Against this background, this section shall briey shed light on the normative values
and multiple goals competition law is aiming to serve in a democratic society.
Arguably, these multiple objectives might explain why competition provisions do
and must show a certain degree of
framework with the capability to adapt to changes gradually happening over time.
This seems crucial for the meaning and interplay of economic analysis and effects as
a means to establish competition law infringements. Furthermore, it will be shown
12
Van den Bergh (2016), p. 1.
13
Foer and Durst (2018), p. 508. Regarding the characteristic of competition law to
and its tendency to create
also see Ezrachi (2017), p. 51.
14
Ezrachi (2017), p. 59.
15
Witt (2016a), p. 109.
16
Van den Bergh (2016), pp. 16 and 39.
17
Ezrachi (2017), p. 59.

that the introduction of the
focus as regards the respective relevant objectives competition law serves.
18
14 2 Competition Law, Economics and the
2.2.1 General Remarks
As noted by
like little more than a philosophical exercise without practical relevance.
19
How-
ever, as noted by the latter, this is not the case, as the objectives a set of rules aims to
seek are
20
Further-
more, it seems apparent
competition law is dependent on the goals that competition law is attempting to
serve
21
Furthermore, another interesting aspect is the level on which economic theory or
actual economic effects should be taken into consideration, as economic theory and
the consideration of economics can play a role at different levels
22
of an economic
system. In this respect, the perspective of constitutional economics plays an impor-
tant role, that is, its distinction between a constitutional level and a sub-constitutional
level.
23
Whereas the former is about
24
the latter follows the
principle of
25
Therefore, on the one hand, for example ordoliberalism, as a school of economic
thought and its holistic approach to society is about the normative foundations and
values of competition law. Discussions and controversy in this respect boil down to
the question about the proper objectives of competition law, or put differently, what
goal competition policy should ultimately and predominantly seek to advance (for
example, consumer welfare, total welfare, maintenance of an effective competitive
structure, freedom to compete etc). On the other hand, economic theory consider-
ations when applying competition law provisions within a
framework, that is, a free society, liberal democracy, social market economy, are a
whole new ballgame. This seems crucial for any analysis of the
approach
considered needs to be determined.
18
Witt (2016a), p. 103.
19
Witt (2016a), p. 34.
20
Ibid.
21
Van den Bergh (2016), p. 1.
22
Colomo (2018a), p. 13.
23
Vanberg (2009), p. 1.
24
Ibid.
25
Vanberg (2009), p. 1.

2.2 Pluralism and the Goals of Competition Law: Their Meaning forthe Use of
Economic theory and the consideration of economic effects can play a role at two
different levels
26
: (i) the constitutional level as well as (ii) the sub-constitutional
level. Therefore, whereas the sub-constitutional level concerns economic consider-
ations
27
that is, when applying the
competition law provisions, at the constitutional level economics play a role with
respect to the
28
This is essential as the
approach rst
for an application of the rules based
current economic thinking
29
However, this has been subject to criticism, and was
labelled as
30
as with respect to these critics the competition
rules themselves (at the constitutional level)
31
This criticism seems to fall short of the fact that such shift towards a more economic
approach was not without effect on the normative level though. The introduction of a
‘
also had an inuence on the focus of the goals and objectives of competition law
32
(see under Sect. 2.3). Therefore, although the most evident effect of the
economic approach
provisions, alterations at the constitutional level, that is, regarding their respective
goals and objectives seem necessarily associated therewith. Loosely and
untechnically speaking, in order for a
applying the law) to be established, ned.
33
In
short, the former works as pre-condition of the latter.
Against this backdrop, when dening the various objectives of competition law,
one should keep in mind the illustrated distinction between the different levels on
which the latter are located. Therefore, one should distinguish whether the identied
objective is located at the normative level, that is, the level of the creation of the rules
shaping the framework within which competition in a free society should happen
(
tional level
Arguably, beyond (or at least at) the constitutional level, there might even be a
further (sub-)category of aspects competition law aims to safeguard, namely, broader
values of a liberal democratic society, such as for example freedom, equality of
opportunity or fairness.
34
With that in mind,
26
Vanberg (2009), p. 25.
27
Vanberg (2009), p. 10.
28
Ibid.
29
Witt (2016a), p. 34.
30
Schmidt and Voigt (2007), p. 47.
31
Christiansen and Kerber (2006), p. 237.
32
Ezrachi (2018a), p. 5; Witt (2016a), pp. 103 and 109; Witt (2018), pp. 417–
33
Witt (2016a), p. 103.
34
Which seem to be fundamental values and ideals of the European Union as they are basically
covered by or explicitly mentioned in the preamble of the Treaty on European Union (

‘
35
and nature of competition law. He uses this metaphor
to catch the multitude of objectives and the competition law
narrow its application and harness it [
Thereby,
the competitive process as understood by many
36
16 2 Competition Law, Economics and the
However, why emphasise the different levels on which the respective aims of
competition law are to be realised? Such understanding seems essential, especially
with respect to laws that serve a wider spectrum of aspects such as, for example,
economic welfare as well as a society
such by supporting and underpinning its legal and economic system, that is, in our
case, a liberal democracy based on the economic system of an open or, more
specically, social market economy.
37
Against this backdrop, the economic disci-
pline serves as
which may provide a stabilizing effect and a focal point for antitrust enforcement
38
Put in
‘
39
The intertwining of law and economics lies at the roots of EU competition law
and might in part
40
be traced back to the ordoliberal tradition, as there seems to be
little academic controversy regarding the impact of the latter on the drafting and
conceptualising of the EU competition provisions.
41
Therefore, there is no doubt that
the objectives of European competition law have always been multiple ones.
42
Such
multitude of goals seems somehow planted in European competition law
Ezrachi
43
and result, on the one hand, from the meaningful role
competition law plays in order for a free society, liberal democracy, social market
economy to function persistently. In this respect, the in
had on EU competition law seems obvious. On the other hand, as indicated above,
also the uniqueness of the project of the European Union and its idea of a single
35
Ezrachi (2017), p. 59.
36
Ibid.
37
The model of a social market economy is, arguably, one among different variants of the system of
an open market economy, such as, to name other examples a liberal market economy, an ecosocial
market economy. Hence, as identi
one particular con
(2009), p. 185 and in particular note 151.
38
Ezrachi (2017), p. 59.
39
Ibid.
40
But not exclusively, as for example, also US antitrust law has for sure had an inﬂ
comes to the application of competition law based on sound economic principles.
41
Kaffert (2019), p. 138; Kallaugher and Sher (2004) 268; dissenting Akman and Kassim (2010),
pp. 111– –
42
For an extensive analysis of almost 4000 sources of the literature and the decisional practice of the
EU institutions on the goals of EU competition law see: Stylianou and Iacovides (2022), pp. 1
43
A term used by Ariel Ezrachi when talking about competition goals and values, see for example,
Ezrachi (2017), p. 51 as well as Ezrachi (2018a), p. 3.

market
44
in form of a levelled playing eld for competition is an important aspect to
be considered.
45
2.2 Pluralism and the Goals of Competition Law: Their Meaning for the Use of.
2.2.2 Goals, Values and Other Normative Foundations: The
Competition Law Mosaic of Diversity
Looking at the objectives of European competition law, some have called them
unresolved puzzle
46
Such metaphor seems justied when looking at the respective
pluralistic conglomerate of terms and notions: economic welfare, consumer welfare,
total welfare, ef
freedom, an effective competition structure. Furthermore, also public health,
47
social
and consumer protection,
48
industrial, environmental
49
and employment consider-
ations
50
might play a role in the application and development of competition law as
well as
of opportunity, fairness and democracy.
51
Without doubt and shown by an extensive analysis of almost 4000 sources of the
literature and the decisional practice of the EU institutions on the goals of EU
competition law conducted by
52
competition provisions
do not only serve economic, but also non-economic goals. This seems inherent to the
nature of competition law serving the broader picture and idea of a liberal democ-
racy. Furthermore, the fact that the latter objectives mentioned are multiple ones and
located at different levels of a ’
this respect stressing that
outlined
53
makes it—
Against this backdrop, the aims and objectives of EU competition law should be
structured by distinguishing between
44
Also referred to as
45
A fact that has been stressed by the ECJ, , in Case C-403/08
Premier League and Others
46
Van den Bergh (2016), p. 15.
47
Art 168(1) TFEU; Art 35 Charter of Fundamental Rights of the European Union (2000/C 364/01).
48
Art 12 and Art 9 TFEU; Art 38 Charter of Fundamental Rights of the European Union (2000/C
364/01).
49
Art 11 TFEU; Art 37 Charter of Fundamental Rights of the European Union (2000/C 364/01).
50
Art 3 TEU.
51
The list is inﬂ
pp. 16 and 19, Witt (2016a), pp. 80 and 83.
52
Stylianou and Iacovides (2022).
53
Ezrachi (2018a), p. 3.

as
54
Moreover, such categorisation could be
further ne-tuned
constitutional level
18 2 Competition Law, Economics and the Economic Approach
The consumer welfare standard (covering the notions of economic welfare and
total welfare) as well as competition law as an instrument to
itive process as such [
55
and consequently safeguard plurality, would fall into the category of economic
objectives.
56
Consequently, the notions of market integration, public health, social
and consumer protection, industrial, environmental and employment considerations,
as well as individual freedom, equality of opportunity, fairness and democracy, fall
into the category of non-economic goals. The latter list in particular demonstrates the
multitude of political, social and moral goals EU competition law pursues besides its
economic aims. Therefore, in particular the notions of individual freedom, equality
of opportunities, fairness and democracy would fall into the category of moral norms
or normative values, thereby underpinning the bigger picture, that is, the role of
competition law as a means to serve a liberal, democratic society and social market
economy. Market integration, however, qualies as political goal and
sense
consumer protection, industrial, environmental and employment considerations and
objectives should be seen as part of the big picture too, and
perspective
The pluralism of the goals and normative values of competition law as well as
their
theless, they contribute to
57
In that sense, competition
law
warranting the system of a social market economy as well as the broader European
Union
tude of goals and the difculties associated therewith are, so to speak, a
evil
54
Sauter
the structure of the market and the process of competition as such; see Sauter (2016), pp. 61 et
seq, 87.
55
Van den Bergh (2016), p. 39.
56
Ibid.
57
Ezrachi (2018a), p. 3.

2.3 The
2.3 The more Economic Approach
of Competition Law
As mentioned earlier, the most evident effect of the
based
provisions. In that sense, the striving for adequacy in competition law cases and
decisions seems to have been a driving force with the aim to apply competition law
based on sound economics.
Furthermore, also the inuence of American antitrust law and the US courts
decisional practice, which had been pursuing ’
58
since the eighties of the last century might have inuenced this change of paradigm.
However, also alterations at the constitutional level, that is, regarding the respective
goals and objectives of the law seem necessarily associated therewith. Therefore, the
introduction of the
preceded by a change in the focus of the goals of competition law. In that sense, with
respect to the objectives of competition law, one could also speak from a shift
towards
59
As illustrated in the foregoing, the goals of EU competition law have always been
multiple ones. This multitude and mosaic of various values and aims is somehow
inherently linked to the
as such, and in particular of EU competition law. Furthermore, there has never been
an established hierarchy regarding the multitude of the different objectives EU
competition law is pursuing, that is, economic, political, social and moral objec-
tives.
60
However, this approach seems to have shifted with the introduction of the
‘
arguably
61
—
and objectives, thereby mainly focussing on
62
(such approach
also being called
words,
Competition policy is a tool at the service of consumers. Consumer welfare is at
the heart of our policy and its achievement drives our priorities and guides our
decisions
63
Therefore,
are primarily consistent, with consumer welfare, but are not limited to it
64
Further-
more, especially in light of the specicity of the European Union integrational
58
Witt (2018), p. 5.
59
Witt (2016a), p. 103.
60
Witt (2016a), p. 102; Ezrachi (2018a), p. 4.
61
Witt (2016a), p. 102.
62
Akman (2009), p. 268; Kroes (2005), pp. 593, 596; Monti (2004); Witt (2016a), p. 109; Ezrachi
(2018a), p. 4.
63
Almunia (2010).
64
Ezrachi (2018a), p. 4.

project, also market integration seems to be a main aim and focus of European
competition law.
65
20 2 Competition Law, Economics and the
This shift in the approach of the Commission has been appreciated and welcomed
as the approach of the Commission had long been criticised
sound economic analysis and economic effects
66
However, it should be recalled
that
67
—‘
lio
primary focus on consumer welfare and market integration puts emphasis on the
latter mentioned, thereby declaring and qualifying them as the ’
European competition law. However, all other goals and objectives, namely, all
political, social, moral, cultural and other fundamental values of a modern, liberal
democracy competition law is serving, that is, all goals not exclusively economic in
nature, should and must not entirely be left aside when addressing questions relating
to the application of the competition law provisions. Such approach seems to be
echoed in the decisional practice of the Commission
68
as well as the case law of the
ECJ.
69
The Commission
70
for example, concerned an agreement
between producers of washing machines that was exempted under article
101(3) TFEU, due to lower energy costs for consumers as well as on the basis of
lower CO2 emissions. Notwithstanding the fact that the agreement was
anticompetitve as participants to the agreement were restricted with respect to their
freedom to manufacture speci
EU.
71
Another example provides the ECJ
72
where professional
rules imposed by an association of undertakings (the Bar of the Netherlands)
prohibiting multidisciplinary partnerships between lawyers and accountants (liable
65
For the ECJ emphasising that the competitive process itself is worth being protected and harm to
consumers is not always necessary to proof a breach of the competition provisions, see for example,
Case 6/72
[1973] ECLI:EU:C:1973:22 ( 1, n 50), para
106; and Joined Cases C-501/06 P, C-513/06 P, C-515/06 P and C-519/06 P
Services Unlimited v Commission
(2016a), p. 109; Ezrachi (2018a), p. 7; Witt (2018), p. 15. Furthermore, for a detailed analysis to this
effect also considering the administrative practice of the EC and the EU courts case law, see
Colomo (2021).
66
Akman (2009), p. 168.
67
Margrethe Vestager,
the European Parliament
68
Commission Decision of 24 January 1999 (Case IV.F.1/36.718) [1999] OJ L187/47 (
para 35. See also Commission Decision of 8 September 2001 (Case COMP.F.1/37.893) [2001] OJ
C250/4 (CECED II
69
For example, Case C-309/99
70
CECED-I
37.893) [2001] OJ C250/4 (
71
European Commission Press Release, IP/00/148 (11 February 2000).
72
Case C-309/99

to restrict competition) was not caught by Article 101(1) TFEU due to the pro-
hibition
2.4 Conclusions 21
2.4 Conclusions
Competition law has ever since been serving a wide range of normative goals and
values rooting at the heart of modern liberal democracies. Moreover, different
competition law systems are to be understood against their respective jurisdictional
context, as differences regarding philosophical, political, policy and enforcement
approaches might be the key to understand diverging competition law assessments
and outcomes in similar cases. In other words, different jurisdictions might apply
different substantive principles.
73
Undoubtedly, the pluralism of goals and norma-
tive foundations as well as the interdependence of competition law and economics
make the application of the law anything but a simple exercise. However, as such
pluralism is indispensable, it is a
In light of the above and the aim to strive for adequacy in competition law cases,
in the late nineties of the last century the
law had been applied was revised and replaced by the introduction of a more
economic or effects-based approach. The aim of the latter was to apply the law
based on sound economic principles. Although it has been argued that the more
economic approach seems to have had an impact at the sub-constitutional level
only,
74
the introduction of the
shift towards
75
Since then, the focus of EU competition law
has been on
process)
(political, social and moral objectives) are to be left aside. Rather, such narrowing
down leads to economic thinking serving as
to warrant adequacy with respect to competition law assessment. Nevertheless, most
of the recent developments in the debate about competition law goals stem from a
too narrow understanding of the
our competition law framework un
we are facing today.
76
In that sense, the more economic approach was a pioneer to strive for adequacy in
competition law cases, while, arguably also aiming to make economic thinking
73
Ibid. Also see the merger of Boeing/McDonnell Douglas (1997) which was cleared by the FTC,
however blocked by the EC (
74
Schmidt and Voigt (2007), p. 47.
75
Witt (2016a), p. 103.
76
Take for example, all issues related to climate change; on the debate concerning the goals of
competition law when aiming to apply the competition provisions in a
sustainability agreements see: Zelger (2023).

constant benchmark which may provide a stabilizing effect and a focal point for
antitrust enforcement
77
With respect to future developments and phenomena too,
that is, digitisation and its impact on our economy, effect analysis and the application
of competition law based on solid economic theory seems gratifying. Not least
because the
has in the establishment of competition law infringements might be useful tools in
testing and/or re-thinking competition law. When considering the impact of new
economic phenomena and challenged practices within the latter, the role and mean-
ing of effect-analysis seems
adequacy in competition law decisions.
22 2 C ompetition Law, Economics and the
77
Ezrachi (2017), p. 59.

23
Chapter 3
Effects and Article 101 TFEU
This chapter will deal with effects in the establishment of Article 101(1) TFEU
infringements, thereby especially focussing on the meaning and role of the latter in
the context of by object restrictions.
1
Moreover, the respective relevant Article
101 case law with respect to real-world markets, that is, the ofine environment
will be analysed.
In this context, the role and meaning of effects as regards the concept of a context
analysis as required for the establishment of by object restrictions as well as its
delimitation from a full effect analysis seems crucial. It will be argued that effects
should play a more prominent role in general and particularly when it comes to
digital markets, also considering the tense notions of legal certainty and adequacy, as
the latter should be seen as ‘communicating vessels’ working as ‘reciprocal correc-
tives’. In other words, for the sake of both, adequacy and legal certainty consider-
ations, the Commission would be well advised not to put everything into the ‘object
box’, as a case-by-case approach, at ﬁrst glance acting to the detriment of legal
certainty, serves the latter by shaping and forming standards thereby also performing
to the beneﬁt of adequacy regarding future decisional outcomes. The idea of
‘communicating vessels’ tries capturing these, methaporically speaking, somehow
‘sine-curve’ and ‘wave-like’ developments echoing the tension of the two concepts
of legal certainty and adequacy.
Furthermore, it will be argued that a too restrictive approach of both concepts
does not necessarily lead to appropriate and valuable outcomes and decisions in
competition law cases, as a too strict approach (from both perspectives) would either
lead to a too rigid system presumably fostering false positives (in the context of by
object restrictions) or end up in a case-by-case jungle rather being chaotic than
contributing to a coherent legal certainty standard (in the context of by effect
restrictions).
1
As the role of effects in by effect cases seems rather obvious: they need to be proved.
© The
B. Zelger, Restrictions of EU Competition Law in the Digital Age, Studies in
European Economic Law and Regulation 25,
https://doi.org/10.1007/978-3-031-31339-4_3

24 3 Effects and Article 101 TFEU
3.1 The Concept of Restrictions by ObjectEffect
3.1.1 General Remarks
With respect to Article 101(1) TFEU the concept of effects can be found in the
Treaty provision itself, because of the clear wording of Article 101(1) TFEU con-
sidering the conjunction which stipulates that an infringement can be established by
object or by way of its effects.
2
Therefore, the structure and wording of the provision
simply excludes the notion of object restrictions from a full-analysis of its effects, by
mentioning the two concepts as
3
For that reason, where an agreement
has as its object the restriction of competition, it is not necessary to prove anticom-
petitive effects.
4
This sounds straightforward, however, in practice it is not always
clear cut, where to draw the line between the concepts of by object and effect
infringements.
5
The reasons for this are manifold.
Firstly, as mentioned earlier, the intertwining of law and economics plays an
important role in this respect. In other words, it is, to a large extent, the underlying
economic theory which determines whether a measure falls into the
rather qualies as restriction of competition by effect, as it serves as a means to
assess the detrimental nature of a practice. Such assessment is prone to change as
‘
models, [
ments and other types of coordination
6
Secondly, also the underlying facts of each specic case
7
are crucial for the
quali
Sect. 3.3). A condemnation of a measure only because of its
formalistic approach, is therefore not possible.
It will be shown, that measures qualifying as object restrictions in one case do not
necessarily have to qualify as object infringements in a
different set up
8
; a fact that might speak for the compliance with the
approach c
9
outcome of competition
2
Apparent from the Treaty provision itself and con 1, n 35), para
249; Cases 56 and 58/64
Competition Authority v Beef Industry Development Society Ltd
( 1, n 36), para 29.
3
Ibid and in particular 1, n 35), para 249.
4
Case C-67/13P
Bancaires
[2015] ECLI:EU:C:2015:184 ( 1, n 35), p. 249; 1,
n 36), para 30; Whish and Bailey (2021), p. 125.
5
Peeperkorn (2017), para 3.
6
Gerard (2012), p. 2.
7
Colomo (2018b), p. 8.
8
See Sect. 3.1.1.
9
Colomo (2018b), p. 8; Colomo and Lamadrid (2017), p. 9.

law cases. In other words, the classi
relieve the Commission or a national competition authority of the obligation of
carrying out an individual assessment of an agreement
10
Such approach, that is,
‘
11
is also exemplied in the Commission
Guidance on restrictions of competition
12
An
nature might only be true for genuine cartel agreements as the benets of such
agreements are considered being relatively rare.
13
3.1 The Concept of Restrictions by
However, even as regards cartel-like arrangements, economists have not entirely
excluded that such agreements might nevertheless be benecial,
14
a fact the
European Commission is very much aware of
15
and which is mirrored in the case
law and administrative practice of the EC.
16
Under the old regimen of individual
exemptions, before the implementation of Regulation 1/2003,
17
for example, the
European Commission granted individual exemptions for agreements considered
being
18
Such decisions were made,
alia
19
Visa International
20
and in
Société Air France/Alitalia Linee Aeree Italiane
21
Thirdly, practices might be treated differently in different competition law sys-
tems (for example, the handling of RPM in the European Union as well as under US
Antitrust law
22
). As argued earlier,
23
the different handling proves the various
inuences, which have an impact on competition law and policy, that is, the
economic environment, political system, societal structure as well as the inuence
of economic theory and the latter
10
Case C-439/09
and Ministre de l Pierre
Fabre
11
Colomo and Lamadrid (2017), p. 7.
12
Guidance on restrictions of competition ﬁ
may beneﬁ
competition
13
Bailey (2012), p. 567.
14
Scherer and Ross (1990), pp. 335–
15
Visa International
sion 2002/914/EC [2002] OJ L318/17, para 79.
16
Colomo (2018a), p. 90.
17
Council Regulation (EC) 1/2003 on the Implementation of the Rules on Competition Laid Down
in Articles 81 [101] and 82 [102] of the Treaty [2003] OJ L001 (Regulation 1/2003).
18
Zelger (2017), p. 362.
19
REIMS II
20
Visa International
21
Société Air France/Alitalia Linee Aeree Italiane
Decision 2004/841/EC [2000] OJ L362/17; see also
(CASE COMP/39.596) Commission Decision of 14 July 2010.
22
See Sect. 3.1.3.
23
See Sect. 2.3, pp. 38

understand the global landscape of competition law systems, the existence of
different policy approaches against the backdrop of different economies is essential
in practice (see Sect. 3.1.3).
26 3 Effects and Article 101 TFEU
In this light, it becomes obvious that a clear-cut categorisation of by object and
effect infringements without considering the context within which an agreement or
practice is operated is not impossible. Moreover, over the years it has constantly
been held and stressed by the ECJ
24
that the form of a practice only is not suf
for the establishment of an object restriction.
However, how much
a
analysis as required under the
competition by effect? Is the establishment of an object restriction free of any
consideration of the effects a measure is likely to have? Regarding the latter
question, it is, arguably, not with respect to the effects or the impact a measure
might have.
25
The underlying idea of object restrictions is that such practices are
considered having a ciently deleterious effect on competition
26
or, as put with
respect to
unreasonably restrain competition
27
Related to this consideration of a likely neg-
ative impact, a view that such measures justify the presumption of harmful effects
was developed.
28
However, other voices plead for the notion of object restrictions not entailing a
presumption of likely effects
29
as a practice might qualify as restrictive by object
even
30
thereby
referring to the ECJ
31
I somehow agree with that line of
argument insofar as actual detrimental effects are neither to be proven nor is an
actual lack of the latter a suitable defence in case a measure quali
24
Joined Cases 96/82 to 102/82, 104/82, 105/82 and 110/82
v Commission
(Chap. 2, n 65), para 58;
‘
25
Arguing similarily Ioannidou and Nowag (2015), pp. 340
26
STM 1, n 35), para 249.
27
Cavanagh (2017), p. 48.
28
See for example
29
Pablo Ib
restrictions by object https://chillingcompetition.
com/2015/04/10/the-one-about-bananas-and-cred
tions-by-object/>
30
Pablo Ib
Chillin https://chillingcompetition.com/2015/12/10/what-the-
court-said-and-did-not-say-in-maxima-latvija/>
31
Bananas

object.
32
In this context and in light of a
presumption of anticompetitive effects, arguing against such presumption appears
plausible.
3.1 The Concept of Restrictions by
Nevertheless, the term of a presumption of negative effects should better be
understood in the sense that an assumption of
impact on competition
‘
tively in the sense that
that such practices are likely to have a
of harmful effects seems, in my view, not to be at odds with the concept of by object
restrictions of competition. In that sense, the notion should encapsulate the idea that
a measure, more likely than not, has the potential to harm competition, that is, it has a
negative effect on consumer welfare, the competitive process as such or on market
integration (measured against the backdrop of the counterfactual as a benchmark).
This idea seems to be captured by the notion of
as developed by
33
(see in this regard Sect. 3.4.1).
Furthermore, it is my opinion that voices denying a presumption of anticompet-
itive effects (in the
the Court, in the
protect not only the immediate interests of individual competitors or consumers but
also to protect the structure of the market and thus competition as such
34
Therefore, it was against this backdrop that the ECJ acknowledged that for a
concerted practice to be found to have
need to be a direct link between that practice and consumer prices
35
(thereby,
arguably also echoing the multiple goals of EU competition law). For that reason,
detrimental effects of a practice might not be materialised or likely in form of an
impact on prices only. Rather, if effects are likely to appear in form of an impact or
effect on the competitive structure and process as such, a presumption of a measure
detrimentally affecting competition is justied as well. Thus, the term of a presump-
tion of negative effects should better be understood in the sense that an assumption
of detrimental effects or a negative impact on competition being very likely seems
reasonable.
Furthermore, also the claim that an object analysis is rather
behind the agreement
36
does not seem to be at
odds with this reasoning, as the underlying rationale of a practice is usually also
revealing when it comes to the detrimental nature of a measure, that is, the likelihood
of its negative impact or negative effects. As stressed earlier, it is just not legitimate
32
C-199/92 P
(Chap. 1, n 36), para 51.
33
Peeperkorn (2017), para 64.
34
Bananas
35
Ibid
36
Colomo (n 29).

to deviate the harmful and detrimental nature of a practice from its form only,
without considering the objective in light of the respective legal and economic
context. Put differently, a measure, considering the actual circumstances within
which it is implemented, that is driven by a purely anticompetitive aim not pursuing
any legitimate, pro-competitive purpose that bene
very unlikely not to qualify as restrictive by object as it is very likely to be
detrimental to competition. In case, however, a practice appears rather ambiguous
with respect to its potential or likely impact on competition, such ambiguity might be
the reason for a practice to fall foul of the notion of an object restriction.
28 3 Effects and Article 101 TFEU
Therefore, in my view (likely) effects, understood as a likely impact on compe-
tition,
37
do play a role in the establishment of object restrictions. They serve as an
‘
competition
38
that is, being more likely than not harmful to
competition.
Furthermore, it is apparent that such likelihood is considerably determined and
inuenced by economic theory, as the latter is decisive with respect to the question
whether or not a presumption of the unlawfulness of a measure seems justied; a
fact, which seems to be in line with the idea of the ’
Therefore, the meaning of effects cannot only be categorised by their respective
constitutional or sub-constitutional level of appearance (see under Sect. 2.2). Rather,
a distinction when actually applying the law is further possible, as, arguably, effects
do not only play a role in effect cases,
39
but also when determining the likelihood of
a detrimental impact, which ultimately decides upon the question whether a measure
is presumed to be harmful to competition by object.
In other words, economics and potential effects, understood as negative impact on
competition, are already crucial and considered before a practice is put into either of
the categories, that is, either the
heading
the likelihood of a measure
the burden and necessity of proving, to the requisite standard or threshold,
actual or potential
Against this backdrop, also considering a practical perspective, a clear delimita-
tion between the notion of object and effect restrictions seems to be the deepest wish
of any undertaking or practitioner concerned, as such question is essential particu-
larly with respect to the burden of proof. As soon as a measure quali
restriction, no actual detrimental effects on the market need to be proven by the
European Commission.
40
Moreover, according to Article 101(3) TFEU, the burden
37
The likelihood of an impact on competition is determined by economic theory.
38
T-Mobile 1, n 36), paras 26
160 (
39
That is, cases treated under the effects-based approach. Colomo (2020b), p. 5.
40
Cartes Bancaires 1, n 35), p. 249;
(Chap. 1, n 36), para 30; Whish and Bailey (2021), p. 125.

of proof of any potential ef
alleged infringement.
41
3.1 The Concept of Restrictions by
However, a different picture is drawn with respect to restrictions of competition
by effect. In such cases, the burden to actually prove anticompetitive effects lies with
the investigating authority. In other words, with respect to effect cases
(as antagonists to object cases), the harmfulness of a practice cannot simply be
presumed. Rather, it is up to the respective competition authority to show and prove
actual or potential anti-competitive effects on the market actually caused by the
measure or practice allegedly infringing competition law.
42
Extensive procedures in
length seem therefore inherent to effect-cases and the proving of effects, as the
denition of a relevant market concerned as well as a full effect-analysis needs to be
conducted. For that reason, (also) from a procedural and practical perspective, the
distinction between object and effect infringements is of great importance and
relevance.
In light of the
the competition provisions in sound economics, the crucial question therefore
remains, where to draw the line between by object and effect infringements?
exercise, which is still subject to debate and court proceedings today.
43
The subsequent sections shall shed light on the notion of restrictions by object
and the delimitation of the latter from effect infringements with the aim to draw a
coherent framework suitable to adequately distinguish between the two types and
concepts of infringements. In a further step, the means to establish a by object
restriction shall be analysed, that is the
particular, the extent to which effects of a measure are considered in this respect.
3.1.2 Object vs. Effect: Pros, Cons, the
Approach
Whereas the notion of object restrictions pursues a
ented
44
approach by prohibiting practices and measures, which are likely to nega-
tively affect competition on the market, the notion of effect infringements follows an
‘
45
approach by requiring the establishment of
41
Zelger (2017), p. 361 with further references.
42
Ibid.
43
See most recently e.g. Case C-179/16
GC Decision ISU 1, n 1); 1, n 31).
44
Zelger (2017), p. 360.
45
Zelger (2017), p. 359.

actual or at least potential anticompetitive effects on the market. Therefore, it is
inherent to the nature of the respective concepts, that their proponents are naturally
opponents.
46
From a procedural perspective, the Commission arguably tends to
favour the notion of object restrictions,
47
whereas the preference of an undertaking
facing the allegation of a competition law infringement is naturally the opposite, that
is, the notion of an effect infringement.
30 3 Effects and Article 101 TFEU
As illustrated above, one key factor being crucial in this respect is fairly certain
the burden of proof, notwithstanding the fact that a practice qualifying as object
restriction can theoretically benet from the exemption according to Article
101(3) TFEU. In other words, as there are no agreements which are, as a matter of
law, excluded from the ambit of Article 101(3) TFEU,
48
all kinds of restrictions are
potentially subject to the latter exemption provision.
49
However, such justication rather seems to be a theoretical possibility, as, since
the adoption of a
not been issued to date
50
and seems to be very unlikely in the near future.
51
Therefore, the position and
one hand, and those of private undertakings on the other hand, as well as the pros and
cons from each of the latters
Considering the Commission
approach
Commission of object cases. In other words, one would rather assume an increase in
the number of effect cases. However, since the introduction of the
approach
52
neither at EU nor the national
level.
53
Hence, the EC has been using the by object concept predominantly since it
has established its more economic approach.
54
46
Arguably, the Commission tends to favour the notion of object restrictions, whereas the prefer-
ence of an undertaking facing the allegation of a competition law infringement is naturally the
opposite.
47
Colomo and Lamadrid (2017), p. 18.
48
See eg Case T-185/00 and other,
para 85.
49
Case T-17/93
50
Witt (2018), p. 8.
51
Commission Notice, Guidelines on the application of Article 81(3) of the Treaty [2004] OJ C101/
97, para 46.
52
Witt (2018), p. 30; Pablo Ib
Chillin https://chillingcompetition.com/2018/01/11/about-the-
isu-decision-a-policy-perspective/>
(2017), p. 18.
53
Witt (2018), p. 30; Colomo and Lamadrid (2017), p. 19.
54
Witt (2018), p. 1.

3.1 The Concept of Restrictions by
Arguably, there might be a
and actual impact of economic ideas on competition policy and therefore the
application of the law.
55
Furthermore, as already indicated above,
56
an approach
based on sound economics does not necessarily lead to an increase or a more
prominent role of effect-cases. Put differently, it is the sound economic principles,
which decide upon whether an effect analysis is actually required, or whether a
measure can be considered being inherently detrimental to competition and subject
to a treatment under the
57
Thus, the role of economic theory is
undoubtedly important. However, as mentioned earlier, also policy considerations
as well as enforcement priorities of competition authorities are crucial in this respect.
Nevertheless, the somehow explosive nature of the propagating of an approach to
the application of the competition law provisions based on sound economic princi-
ples when subsequently and supposedly not adhering to the latter announced, by
simply shifting enforcement priorities to measures (allegedly) qualifying as object
restriction, that is, for example focussing on cartel investigations, cannot be
denied.
58
Admittedly a fact though that seems reasonable from a competition
authority
Furthermore, also the fact that since the adoption of Regulation 1/2003
59
almost
all non-cartel restrictions
60
have been treated by the Commission under the
heading
61
In fact, since 2004, one single case, that
is, the decision in
62
has been issued and treated under the effect-heading
only.
63
Therefore, provocatively speaking,
strued as
64
Besides, this seems particularly unsatisfactory when considering that
by effect can be just as harmful [
effects on competition and consumer welfare
65
Such practice, that is, a lack of
effect-case enforcement action, might also threaten the deterrent effect Article
55
Gerard (2012), p. 1.
56
Sections 1.1 and 3.1.1 (
where effects might come into play).
57
Serving as denominator or benchmark.
58
Witt (2018), p. 16.
59
Regulation 1/2003 (n 17).
60
See for example most recently the decision in
61
Colomo (n 52).
62
Morgan Stanley/Visa International and Visa Europe
3 October 2007.
63
Witt (2018), p. 12.
64
Colomo and Lamadrid (2017), p. 18.
65
Witt (2018), p. 22.

101 TFEU has with respect to restrictions of competition by effect
66
and
furthermore
101(1) TFEU
67
32 3 Effects and Article 101 TFEU
Moreover, from a legal philosophical perspective the balancing of the notions of
object and effect restrictions echoes the tension between legal certainty on the one
hand, as well as adequacy, fairness or justice considerations on the other hand. The
argument in favour of the notion of object restrictions is its functionality to serve
legal certainty as well as the predictability of the law. However, the downside of
such
being detrimental to competition not considering actual or potential efciency gains
a
In this respect, different legal traditions and backgrounds might provide a fertile
breeding ground for different approaches and opinions. However, as mentioned, the
notions of legal certainty and adequacy should be seen as
working as
ﬂexible framework capable of adapting to (societal) changes gradually happening
over time,
68
as the EU courts are known for their
law
69
and
70
Therefore, they do not easily deviate
from existing case law. Rather, the reasons to do so, that is, to actually depart from
precedents and a developed jurisprudential line, must be truly compelling.
3.1.3 The Role of Economic Theory and Competition Policy
It is owed to the nature of competition law that its reasoning is using economic
theory. Therefore, the fact whether a measure quali
rather treated under the effect heading depends, on the one hand (and to a large
extent), on what economic theory can tell us about the harmfulness of a practice.
71
In
this respect, some brought up the idea of object restrictions having a
impact
72
on competition or
73
In other words, borrowed from
Peeperkorn
66
Witt (2018), p. 22.
67
Colomo (n 52); criticising similarly (as regards reverse payment settlements) Alexiadis and
Figueroa (2019), p. 9.
68
Eben (2018), p. 135.
69
Colomo and Lamadrid (2017), p. 19.
70
Ibid.
71
See e.g. Jones and Sufrin (2015), p. 36, emphasizing, that
applied
72
Colomo and Lamadrid (2017), p. 21 referring to Luc Peeperkorn in note 89: Peeperkorn (2017).
73
Peeperkorn (2017) in particular paras 8, 61, 64.

they are (highly) unlikely to be used to create ef
74
Hence, object restric-
tions must
75
3.1 The Concept of Restrictions by
As economic theory itself is somehow ’
76
that is, anything but a stable
discipline, there is consequently leeway for policy decisions. Such margin is of
particular extent in cases where economists have not as commonly agreed upon the
harmfulness of a measure or where mainstream economic theory has changed or
shifted over the years
77
(which might again serve as proof of the discipline
nature).
The treatment of RPM in the US (since 2007
78
) serves as good example for
illustration in this respect. From an economic perspective RPM tends to be a
controversial topic. Neoclassical economic theory, for example, allows different
efciency justications since RPM can be a solution to problems, such as, for
example, the so-called
79
As a consequence of the disagreement as regards the detrimental nature and
impact of RPM, that is, inherent to the debated nature of the latter measure, there
is room for discretion and policy decisions. Thus, there are arguments on both sides,
that is, some speaking in favour of RPM qualifying as object restriction, as well as
others speaking for a treatment of the latter according to its effects on competition.
A shift from being presumed to be illegal
weighing the pro-competitive features against its anticompetitive effects has hap-
pened in US antitrust law. Since 2007
80
the latter practice is reviewed under the
so-called
81
Therefore, the courts are required to weigh all the
relevant facts and circumstances of a case against each other in order to assess
whether a practice unreasonably restraints trade. Put differently, all pro and anti-
competitive effects are to be considered and weighed against each other as such
practice might have ambivalent (rather than unambiguously detrimental) effects on
competition as economists have in principle not as commonly agreed upon the
harmfulness of RPM to competition.
74
Peeperkorn (2017), para 61.
75
Peeperkorn (2017), para 64.
76
Kaleidic
change is bound to upset existing patterns
interspersing its moments or intervals of order, assurance and beauty with sudden disintegration and
a cascade into a new pattern
describing an ever-changing shape and status of an economy, that is, anything but stable.
77
For example, did the so-called Chicago School in the late 70ies bring out a new approach to
antitrust harm which is based on neoclassical microeconomic theory (see Gerard (2012), p. 2).
78
United States Supreme Court, Leegin Creative Leather Products, Inc. v. PSKS, Inc.,
551 U.S. 877 (2007)
79
Zelger (2017), p. 369 with further references.
80
Leegin
81
Whish and Bailey (2021), p. 132.

34 3 Effects and Article 101 TFEU
Although there are voices pleading for a change in the approach regarding RPM
82
in the EU, tendencies to actually shift this view and align it with the US approach
seem rather unlikely
83
as the Commission, in its Guidelines on Vertical Restraints,
84
echoes the concerns as raised by the dissenting judges in the US landmark deci-
sion.
85
Against this backdrop, particularly taking into account the ECJ
Cartes Bancaires
86
where the imposition of a restrictive means to address a genuine
free-rider concern did not amount to a by object infringement of competition
87
(for
details of the ECJ’ 3.6.5), such
rigid policy approach to RPM seems
and
owed to the particular aim of European competition law to foster market integration
and thus the creation of a single market with a levelled playing eld for competi-
tion.
88
Hence, to this effect, the ban on certain behaviour and measures cannot be
explained by economic reasoning only.
89
Nonetheless, the case concerning the International Skating Union (
90
proves, the Commission seems to stick to its approach not considering the free-
rider concern as a legitimate or leveraging aim.
91
The case concerned (vertical)
agreements between ISU, the sole body recognised by the International Olympic
Committee to administer the sports of gure skating and speed skating on ice
92
and
the latter
standing the free-rider concern, the Commission decided to qualify the agreement as
restrictive by object. Therefore, the latter concern
relevance it deserves in the decision
93
The General Court upheld the Commission
82
Arguing in this respect for example Ioannidou & Nowag (2015); Velez (2011), p. 302; Jones
(2009), p. 479; Gippini-Fournier (2009), p. 515.
83
Zelger (2018), p. 451.
84
European Commission, Guidelines on Vertical Restraints [2022] OJ C248/1 (Vertical
Guidelines
85
Leegin
86
Cartes Bancaires
87
Pablo Ib
lessons from Cartes Bancaires and Maxima Latvija?
<https://chillingcompetition.com/2018/04/04/res
sion-not-drawn-the-lessons-from-cartes-bancaires-and-maxima-latvija/>
6 February 2023.
88
Colomo (2021).
89
Ibid, 1.
90
International Skating Union
8 December 2017 notiﬁ
published 2018 OJ C148/9) ( ).
91
Ibid, para 224.
92
European Commission Press Release, IP/17/5184 (8 December 2017).
93
Colomo (n 87).

decision,
94
in particular also as regards the qualication of the ISU rules as restrictive
by object. However, as the case is currently pending at the ECJ, it will be interesting
to see how the the latter will approach and cope with the issue at hand.
95
3.2 Object Restrictions: General Principles 35
Another example, where the European institutions have adopted an arguably
strict
96
by object path opposed to the rule-of-reason approach as chosen by the US
Supreme Court in its decision in
97
provides the assessment of pay for delay
clauses in patent settlement agreements (
delay
98
For a more detailed analysis of reverse
payment settlement agreements see below Sect. 3.7.4.
In light of the above there is, undoubtedly, a certain degree of
controversial practices as regards their assessment. To this effect, it is basically
economic theory that brings light into the dark when it comes to the likelihood of a
measure being detrimental to or restrictive of competition. However, as with respect
to some practices, a clear and unambiguous position is not possible to be drawn from
opinions of economists or economic schools of thought. Consequently, there is room
for discretion and policy decisions. As emphasised above,
99
such
‘
100
and seems necessary for competition law to be
capable of providing the general framework necessary to safeguard the functioning
of a free market economy thereby serving society. Furthermore, such
owed in particular to economics being themselves a discipline built on theoretical
models, as they can only be measured against the backdrop of an ever-changing
reality considering the respective social developments and societal change.
3.2 Object Restrictions: General Principles
Against the backdrop of the general meaning and in
and economic theory as illustrated in the preceding section, the following shall
provide an overview of those principles and concepts, which are relevant in the
context of the establishment of object restrictions pursuant to Article 101(1) TFEU.
In principle, already in the very early years of competition law, the ECJ claried
that all types of agreements, that is, horizontal as well vertical in nature may
constitute a restriction of competition by object.
101
Notwithstanding the fact that
94
GC Decision ISU
95
Case C-124/21 P
96
Killick et al. (2019), p. 5.
97
FTC v. Actavis
98
See the decisions of the GC in 1, n 31), 1, n 31) con
Commission
99
See Sect. 1.1,p.7.
100
Gerber (1992), p. 435.
101
Consten and Grundig

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terrible, brutal, cowardly. Yes, I must be a man. She needs me; I will
help her. Is that door locked? She must never know—never know so
long as she lives. Ah, that is beautiful, wonderful, savory,—a feast
for gods and angels! Yes, I will do my duty. She needs me. She
despises me. Very good; I will do my duty. She scorns my poor food
—secretly, but I know! She is getting well. Thank God for that! She
shall eat all she can. Me? No, no. I don’t want anything. No; I don’t
want a thing. I have no appetite!”
He burst into laughter, and the echo of it came back from the
opposite wall of the canon.
“Oh, my love, my love!” he cried, suddenly becoming sad, “how
could you cast me off, when all had been so true and trusting
between us? But I know it was better so. It was not right for me to
stand in the way.” He paused, and his voice sank into an awed
whisper as he said, “She’s dead, boys, she’s dead; and by God! they
killed her.”
He pushed rapidly on, muttering things that she could not hear,
that she did not want to hear. Not a word of kindness for her had
come from him in his delirium, and her heart was breaking.
“When it is all over,” he said aloud, “I will go to my old friend, and
he will nurse me back to health and strength, and I will begin the
fight again. I will be a man—always a man. I will do my duty. And
the she-wolf—no, no, no! She will not tear out my heart with her
claws and fangs. No! There is no she-wolf! I say, there is no she-
wolf. No! She is kind to me. I know it, I know it! She is gentle and
thoughtful and unselfish. She is very, very beautiful. She won’t leave
me, will she? She won’t leave me alone! But she is unmanning me! I
must not let her do that! I must be a man and do my duty. No, you
must not take off my shoes. I can do that. I have no pain—none
whatever. Yes, I will be calm. Your voice is sweet; it is music; it fills
me with peace and comfort; and your hand on my face—how soft
and pleasant it is! I wish I could tell you; but no, I must do my duty;
I must be a man! I will not listen to your voice. I will not let you
touch me. That would keep me from my duty.”

These words raised her from despair to bliss. And so he had
fought his inclinations,—he needed her, he wanted her!
Still he kept on. She strained every hearing faculty for his slightest
word. For what he had already said, she could bear his forgetting
her presence. Still they pushed on, he muttering and laughing; but
for all his madness, he was wise and cautious amid the dangers and
hardships of the road. No longer did he advise her, guide her, assist
her, and show her the innumerable unobtrusive attentions to which
she had become accustomed.
At last he suddenly stopped in a stretch of good road and looked
about, bewildered.
“Where is this?” he whispered; then aloud, “Oh, it is the trail of
the wolves! After them will come the she-wolf, and her fangs——”
He dropped his parcel and clutched his breast. “Her fangs!” he
gasped. He looked about and picked up a stick, which he swung as a
club about him. “The she-wolf is here!” he cried.
His glance fell upon his companion, standing in awe and pity and
love before him. Instantly a fearful malignity hardened his face, and
his eyes blazed with the murder that had filled them once before. He
clutched the stick more fiercely, and glared at her with a mixture of
terror and ferocity. But she stood firm, and gently said,—
“My friend!”
His face instantly softened. She stood smiling, her glance
caressing, her whole bearing bespeaking sympathy and affection.
“My dear friend,” she said, in a voice whose sweetness sank deep
within him, “you know me!”
A look of joyous recognition swept over his face.
“I am so glad!” he breathlessly said. “I thought you had left me
alone!”
Saying this, he sank to the ground, smiling upon her as he fell.
She knelt beside him, placed a soothing hand upon his cheek, and
spoke comforting words. His face showed the profound gratification

that filled him, and her soul spread its wings in the sunshine that
filled the day with its glories.
He lay limp and helpless, but she knew that he must be going
forward if he could. She caressed him, she coaxed him, she raised
him to a sitting posture, she put her arms under his and lifted him to
his feet; but his breathing was short and distressed, his head rolled
listlessly, and his legs refused their offices. Then she realized that
the last remnant of his strength, both of body and spirit, was gone;
and her heart sank to the uttermost depths.
“Lay me down,” he said, very gently, but clearly, and with perfect
resignation. “Lay me down, my friend, and go on alone. I am very
tired, and must sleep. Keep to the road. I don’t think it is far to the
nearest house. You are sure to find some one. Be brave and keep
on.”
She laid him down and turned away. A cruel choking had throttled
her power of speech. With tears so streaming from her eyes that she
went about her purpose half blind, she found a drier place in the
road, gathered pine-needles less soaked than the rest, made a bed
for him there, and spread upon it the blankets that he had been
carrying. When she looked again into his face he was sleeping
lightly, and his breathing betrayed great physical distress. As gently
as a mother lifting her sleeping babe, she took him up in her arms,
bore him to the bed, and with infinite care and tenderness laid him
upon it. Then with some twigs and handkerchiefs she fashioned a
canopy that shielded his head from the sun. She covered him with a
free part of the blanket; but fearing that it would prove insufficient,
she removed her outer skirt and covered him with that; these covers
she tucked about him, that he might not easily throw them off.
He had not been roused by these attentions. She knelt beside him
and gently kissed his hands, his cheeks, his forehead, his lips, and
wiped away her streaming tears as they fell upon his face. He moved
slightly, opened his eyes, looked into her face, and smiled. Very
feebly he took her hand, brought it to his lips, kissed it, smiled
again, closed his eyes, and with a sigh of weariness fell asleep. She
knelt thus and watched him for a little while, seeing him sink deeper

and deeper into slumber. Then she rose. And now may the great
God give heart and strength for the mighty task ahead!
Not trusting herself to look back upon him, she gathered up her
courage and started. On she went, her head high, her eyes aflame,
her cheeks aglow. A suffocating, heart-aching loneliness haunted
her, dogged her, gnawed at her spirit. More than once she wavered,
weak and trembling, under the backward strain upon her heart-
strings. More than once she cried aloud, “I can’t leave him! I can’t
leave him! I must go back!” And then she would summon all her
strength again, and cry, “It is for his sake that I go! It is to save him
that I leave him!”
Thus, rended by contending agonies, she went on and on. With
incredible self-torturings she pictured the dangers to which she had
left him exposed. What had he meant by the wolves? Was there
really danger from that source? Often in his sleep in the hut, and
again when his mind would wander, he had spoken of the wolves,
and always in terror; but most dreadful of all things to him was the
she-wolf. Yet during all the time that she had been imprisoned with
him in the hut there had not been the least sign of a wolf, not the
most distant howl of one. Why had this hallucination been so
persistent with him, so terrifying to him?
The miles seemed interminable. She kept her eyes and ears
strained for signs and sounds of human life. At intervals she would
call aloud with all her might, and after hearing the echo of her voice
die away in the canon, wait breathlessly for a response that never
came. With eager haste she pushed on. Clambering over fallen
trees, heading gullies that she could not leap, wading swift rivulets
with which the rapidly melting snow was still ploughing the road, she
came at length within view of some men who were clearing the road
with axes and mending it with shovels,—the rough, strong, silent,
capable men of the mountains. She frantically waved her
handkerchief and called as she went. They stopped their work and
stood gazing at her in wondering silence. They saw that she was not
of their kind; but their trained sensibilities informed them that the
great mountains had been working their terrible will upon human

helplessness, and they stood ready to put the strength of their arms
and hearts into the human struggle.
Imperfectly clad as she was, her form and bearing suggesting a
princess, her beauty, enhanced by her joy at finding help, radiant
and dazzling, their wonder and shyness held them stolid and
outwardly unresponsive, and they silently waited for her to speak.
She went straight to them, and, looking at them one after another
as she spoke, she said,—
“Will you help me, men? I left a man exhausted in the road some
miles down the canon. I fear he is dying. Will you go with me and
help me bring him up? Is there a doctor anywhere near? Is there a
house to which we may take him?”
There was a moment of silence,—these men are slow, but all the
surer for that.
One of them, a bearded, commanding man of middle age, said,—
“Yes, we will go and bring him up. A doctor lives up the canon.
Maybe he’s at home. The man can’t walk?”
“No; he is lying helpless in the road.” The strong man, whom she
afterward heard the others call Samson,—one of those singular
coincidences of name and character,—turned and picked out two
men.
“You two,” he said, as quietly as though he were directing the
road-work, “cut two poles and make a litter with them and a
blanket. Go and bring the man up. You,” he said to a third, “help
them make the litter, and give a hand on the trip.” Two others he
directed to prepare the wagon, which stood a short distance up the
road. Another he sent up the road to summon the doctor. Then he
turned his attention to the young woman. Without consulting her, he
made a comfortable nest of greatcoats and blankets, and when he
had so deftly and quickly finished it, he said to her,—
“Come and rest here.”
“No!” she vehemently protested; “I am going back with the men.”

“You are not going back with the men. If you did, there would be
two for them to bring up instead of one. One is enough. Make
yourself comfortable here; you are safe.”
The slight rebuke in this, and the quiet determination with which
the man spoke, informed her that she must lay a reasoning hand
upon her agonizing fear and impatience. She obeyed him with as
good a grace as she could find.
Again without consulting her, he brought some hot coffee, poured
it into a tin-cup, and held it out to her.
“Drink that,” he said.
She drank it. He then produced some bread, which he sliced and
buttered.
“Eat that,” he said.
She obeyed. While doing so she watched the men make the litter,
and marvelled at the skill with which they worked, and the quickness
with which the task was done, seemingly without the slightest effort
or hurry. Then in silence the three men swung down the road.
The man named Samson, although he had not appeared to be
giving any attention to his fair guest, was in front of her the moment
she had finished the bread and butter. He carried some things in his
arms, and threw them down at her feet.
“Take off your shoes and stockings,” he said, “and put on these
socks; they are thick and warm. Take off all your other things that
are wet, and wrap yourself up in these blankets. By the time the
litter comes your things will be dry in the sun.”

T
CHAPTER FOURTEEN
HE three remaining men turned to their work of clearing the
road, headed by Samson. He had not asked her any
questions; he did not even look again her way; but presently
he brought her clothes, which he had spread and dried in the
sunshine, and told her that by the time she was dressed the litter
would be there. This she found to be so.
Coming down the road, on a powerful horse, she saw a bearded,
ruddy-faced, stocky, middle-aged man, whose business she easily
guessed from the country-doctor’s saddle-bags slung across his
horse. The doctor rode up and greeted,—
“Hello, Samson! Man hurt?”
“Don’t know,” answered the foreman.
Then, with a jerk of his thumb toward his guest, he added, “She
can tell you.”
The doctor had not seen her. He looked around, gazed at her a
moment in astonishment, and then, with a fine courtesy singularly
different from the hearty roughness with which he had greeted the
man, he raised his hat.
This diversion had kept the attention of the two from the quiet
arrival of the men with the litter. When the young woman saw it, she
forgot the presence of all save him lying so quiet where the men had
placed him on a bed made by Samson from coats. She ran and knelt
beside him; she kissed his cheeks; she chafed his hands; she
begged him to speak, to live for her sake.
The strong hand of the doctor lifted her from the unconscious
man and gently put her aside. A moment’s astonished gaze into the
pallid, upturned face brought this burst from the doctor,—

“Adrian Wilder—dying!” He turned anxiously upon the young
woman, and demanded, “Where did you find him? What is the
matter here?”
“You mistake,” she firmly said. “He is Dr. Malbone.”
“Dr. Malbone!” he exclaimed. “Why, I am Dr. Malbone. This man is
my friend, Adrian Wilder!”
His look was half fierce and full of suspicion.
Too surprised to comprehend at once the full meaning of his
declaration, she stood staring at the physician in silence. That
gentleman, turning from her, dropped on his knees and made a
hurried examination of the unconscious man. “I don’t understand
this,” he said to himself. He quickly opened Wilder’s shirt. Upon
seeing the emaciation there, and exclaiming in amazement and
horror, he turned again upon the young woman as he knelt, and
demanded,—
“Explain this to me. Be quick, for every moment is precious. I
don’t want to make a mistake, and I must know. He has pneumonia;
but there is something behind it. Where and when did you find
him?”
In a few words she told the salient facts of the story as she
believed it,—the running away of the horses, the breaking of her leg,
her father’s departure to fetch relief, her care at the stone hut.
“When did this accident happen to you?” the doctor asked.
“Four months ago.”
“And you two have lived alone at his cabin?”
“Yes.”
He glanced her over, and looked more puzzled than ever.
“You are looking hearty,” he said; “how is it that my friend is in
this condition?”
“It must have been his care of me and his worry on my account.”
This appeared half to satisfy Dr. Mal-bone.

“Yes,” he said, “not being a doctor, and being extremely
susceptible to the pressure of his duty toward you, he may have
worn himself out.”
With that he hastily gave the young man a stimulant, and said,—
“Fall to here, men, and help me revive him, else he will be dead
before we know it. Chafe his wrists and ankles. Hurry, men, but be
gentle. That is good. Slow, there, John; those horny hands of yours
are strong and rough. Samson, bring some strong coffee as quickly
as God will let you. Rub him under the blankets, men; don’t let him
chill. Maybe we can get him out of this pinch. The great thing now is
to take him to my house.... Ah, that is good work, lads! His heart is
waking up a little. That is good. That is very good.”
Dr. Malbone straightened up, and turned to the young woman,
again fastening upon her the strange, severe, suspicious, half-
threatening look that she had already learned to dread.
“I fear there is something unexplained here, madam, something
concealed. I am not accusing you. My friend is a strange, fine man,
and for good reasons he may have withheld something from you.
But he would never hide anything from me. Did he give you a letter
for any one?”
“He did not.”
“Have you seen him writing?”
“No.”
“Martin, hand me his coat.”
Dr. Malbone searched the pockets, and found a sealed letter
addressed to him. He tore it open and read. As he read his
astonishment grew. When he had finished, he turned a strange,
pitying look upon the young woman.
“He charges me to give you this when I shall have read it.”
He handed her the letter, which she read. It ran thus:
“My dear Friend,—This is written to give Miss Andros some
unhappy information that she ought to have at the earliest safe and
proper moment, and as a precaution against my breaking down

before that moment arrives. To have told her at first might have
prevented her recovery. The proper moment to tell her will have
arrived when she is in safe hands. I trust that they may be yours,
and I know that you will show her every kindness that your
generous soul can yield.
“It is this: Her father lost his life in the accident on the grade, by
the falling of a tree upon him. His body rests under the earth in the
farther end of the cave into which the rear door of my cabin opens.
The grave is marked with a board giving his name. Nailed up in a
box near the door are his personal effects.
“Give this letter to my afflicted friend. It will convey no hint of the
profound sympathy that I feel, nor of what I suffer in thus raising
my hand to deal her so cruel a blow.
“I can only crave her forgiveness for deceiving her both as to her
father’s death and my being a physician.”
The eager hope, the anxiety, the absorption of her entire self in
the stricken man at her feet, fled before the crushing whirlwind of
grief that now overwhelmed her. The loss of her father was the loss
of the anchor of her life, the loss of the one sure thing upon which
her soul rested, in which she knew peace, security, sympathy, and
strength. She spoke no word, but gazed far down the canon, a
picture of complete desolation. Dr. Malbone stood beside her, looking
down thoughtfully into the face of his friend. The men, relieved from
their work of bringing back a faint glow of the flickering life on the
ground, moved away silently, with the instinctive delicacy of their
kind, knowing that they were facing a tragedy that they did not
understand.
The letter fell from the young woman’s hand as she still gazed in
mute agony down the canon. A slight swaying of her form warned
Dr. Malbone that his time for action had arrived.
“A noble life still is left to us,” he quietly said, without looking up,
and with a certain unsteadiness in his voice; “and it appeals to us for
all that we have to give of help and strength and sympathy.”

It was a timely word. Instantly she dragged herself out of the
crushing tumult into which she had been plunged.
“Yes,” she said, radiant with love and towering above the wreck
that encompassed her, “the noblest of all lives is still left to us, and it
shall have all that lies in us to give.”
“Then,” said Dr. Malbone, “time is very precious. Let us take him
to my home at once.”
The sun had set behind the western mountains, but it still tipped
the snowy summit of Mount Shasta with a crimson glow.
“Put the horses through,” said Dr. Malbone to the man who drove.
They made good speed up the grade, Dr. Malbone pondering in
silence some problem that still sorely troubled him, the young
woman sitting on the floor of the wagon and holding the hand of the
unconscious man. Presently they arrived at Dr. Malbone’s house,
where his plain, homelike wife, a competent mountain woman,
quickly had the patient comfortable in bed, while her husband went
thoroughly into the treatment. His was a mercurial spirit, the
opposite of the gentle soul now seemingly passing away under his
hands.
“I can find absolutely nothing,” he finally exclaimed, in despair,
“except simple inanition as the probable cause and a complication of
this attack, and I know that it is absurd. You must help me, madam.
Tell me how you lived.”
Numerous sharp questions were required before he finally came
upon the trail of the truth. She had delayed saying that Wilder had
not eaten with her, and that toward the last he was niggardly with
the food, because she feared that it would sound like a reproach.
The moment she mentioned it, Dr. Mal-bone was transfigured. He
sprang back from the bedside and confronted her, menacing and
formidable, as Wilder had confronted her on that terrible day when
she told him the story of her breaking up the attachment between a
musician and her friend, and the death of the girl from a broken
heart. What had she done or said that should bring this second
storm of a man’s fury upon her?

“And you no doubt think,” cried Dr. Malbone, “that you have
learned from his letter the true reason for his keeping you out of the
cave. In all this broad world is there any human being so besotted
with selfishness as not to be able to burrow through its swinishness
for the truth? Come and look at this.” He dragged her to the bedside
and showed her the body of his patient. “Is there under heaven,” he
continued, “a mental or a spiritual eye so blinded with brutal
egotism, so drunk with self-interest, as not to read the story that this
poor withered frame writes large? Do you not understand that in
those acts—over which you no doubt whined and complained in your
empty heart—he gave evidence of a sublime sacrifice for you? Look
at your own abundant flesh. You never went hungry in the hut. You
never asked yourself if he might have food sufficient for two during
the long winter. And now you see that he has denied himself for
your comfort. He is dying of starvation, because in his splendid
unselfishness he wanted you to be comfortable.”
Dr. Malbone paused, but his eyes were still blazing upon her, and
his body trembled with the passion that stirred him.
“One affliction has fallen upon you; may you have strength and
grace to bear it; but I say this: If ten thousand such afflictions had
overtaken you, the suffering from them would not be adequate——”
He suddenly checked himself, and gave his wife hurried
instructions for the preparation of some nutriment. While this was
preparing, he resorted to such vigorous measures as the urgency of
the case demanded. All this quickly brought him under self-control,
and he worked with the sure hand of a skilful man battling with all
his might in a desperate emergency. The young woman had sunk
into a chair, where she sat dazed, weak, ill, and ignored, not daring
to offer help, and praying dumbly for the opening of a vast gulf to
entomb her.
The patient rallied under the physician’s treatment. Slowly, but
with palpable effect, Dr. Malbone dragged him a little way from the
brink of death. The doctor’s coat was off, but sweat streamed down
his face. His wife—silent, intelligent, and alert—gave him all the help
that he required, and neither of them looked toward the suffering

woman sitting crushed and miserable in the chair. Thus the time
passed until the intense anxiety in the physician’s face began to
relax; and at last, with a sigh, he sank wearily into a chair, remarking
to his wife,—
“There is nothing more to do for the present. He is rallying. Give
him time. The chances are a hundred to one against him.”
He rested his head on the back of his chair and closed his eyes,
while his wife went to discharge her duties in another part of the
house. Soon he raised his head, and in his old kindly manner said to
the young woman,—
“I am sorry for the way in which I talked just now, and I ask you
to forgive me. You will understand my outburst and be more inclined
to forgive me when I tell you something of my poor friend’s life; for I
am certain that he has told you nothing. Has he?”
“No,” she answered, weakly and humbly.
“He has suffered so cruel a wrong in the past that when I see the
least approach to imposition upon his noble unselfishness it
maddens me. I ought not to have blamed you. You were not
conscious of imposing upon him. I believe that he is dying. If so,
there will be no harm in my telling you his story. If he lives, I can
trust you with it.
“I had known him in San Francisco, but I came to these mountains
long before him. It was less than two years ago that he came to me,
and you can never realize the shock that his condition gave me.
After a while he told me of his trouble as he understood it. It was
this: Through giving violin lessons to a young lady of wealth and of
great loveliness of character, he became deeply attached to her, and
in return she gave him her whole affection. She was willing and
anxious to marry him, even though she knew that her parents and
friends would disown her if she did. He hesitated, from pure
unselfishness, to bring upon her any distress that their marriage
might cause. The poor fool could not understand that she would
have gladly given up everything in life for him. He was called away
to fill a lucrative engagement, and in his absence her heart changed

toward him. Soon afterward she died. When he came to me he was
broken in spirit and body, and it was my privilege to start him aright
in a chastened and nobler life. He and I built the cabin, and there he
was to pass the winter in unremitting study and self-mastery.
“That was the story as he told it to me and as he believed it to be.
But I saw that something was behind it that in his sweetness and
generosity he had never suspected. I myself learned the truth. By
means of a few inquiries made by letter to a friend in San Francisco,
I found that an old school-friend of the girl had made the trouble. It
was a case of malicious revenge. The girl whom my friend loved had
innocently and unconsciously received the love of a man for whom
she cared nothing, as her whole affection was with my friend. This
man was very rich, and for that and other reasons was regarded as
a prize. It appears that before losing his heart to this loveliest of girls
he had been devoted to her old school-friend, a beautiful and
dashing belle, who expected to marry him. When she found that she
had lost him, she planned revenge. She was utterly without heart or
principle. So she traded on her old school-mate’s confidence in her,
and used that friendship to separate the lovers with lies and
cunning. She succeeded. The girl died of a broken heart, and my
friend’s life was ruined.”
A look of unutterable horror settled upon the young woman’s face,
and she sat upright and rigid, staring helplessly at him.
“I never told him what I had learned,” resumed the physician. “It
might have broken his heart, and he had suffered enough. I did not
want him to know that malice, revenge, and murder had played their
part in his story.”
The young woman’s face bore so singular an expression that the
physician marvelled. She was white, and deep and unaccustomed
lines marred her beauty.
“He knows the whole truth,” she said, quietly, and with a strange
hardness. “He knows that I am the woman who brought about their
separation. He learned it from me long ago in his cabin.” What Dr.
Malbone might have done under the spur of the horror and

amazement that filled him was checked by a violent fit of coughing
with which his patient had been seized. His physician’s training
instantly sent him to the bedside.
“Help me here!” he cried, as he raised the sufferer.
The young woman staggered to the bed. Dr. Malbone shot a
malevolent glance at her, but she did not heed it. He raised his hand
to thrust her back, but she grasped it, and quietly and firmly said,—
“I am going to help you.”
He yielded, and told her what to do, and she did it.
The cough was checked, and the sufferer was laid back upon the
pillow. His eyes were open, and he looked from one of the watchers
to the other as they stood on opposite sides of the bed. At first he
was puzzled, and then a bright look of recognition lighted up his
face. He smiled as he extended a feeble hand to each.
“You are safe,” he faintly said to the young woman. “I am glad. Dr.
Mal-bone will be kind to you.” To the physician he said, his voice
tremulous with affection, “My dear old friend, always true, always
kind.”
He wanted to say more, but Dr. Mal-bone checked him and gave
him something to strengthen him. He took it, shaking his head and
smiling sadly. Presently, as his eyes grew brighter, Dr. Malbone said,
—
“You may speak now, Adrian, if you wish.”
The young woman had knelt, and, taking the sufferer’s hand in
both of hers, bowed her head over it as she pressed it to her lips.
“Look at me,” he said to her.
She raised her head, and they looked long and silently at each
other. He seemed troubled and anxious.
“My poor friend,” he said, “you have not yet learned. Dr. Malbone
—a letter—my pocket.”
“I have read the letter, my friend,” she hastened to say. “I know all
about my father, and I know how thoughtful and kind you were not
to tell me.”

“Then you forgive me?” he begged.
“Forgive you, my friend? Yes, a thousand times; but how can you
forgive——”
She buried her face in his pillow; her arm stole round him, and
she drew him against her breast.
“I did that long ago,” he replied.
“My noble, generous friend!” she said. “But can you understand
what you have been to me, what you have done for me, what you
are to me? Can you believe that you have made a true woman of
me? Am I still the she-wolf, my friend?”
A supreme agony moved her in this appeal. He feebly tried to
check her with his hand, but she nestled her cheek close against his
and pleaded,—
“Do you understand that you have made me worthy of every kind
regard that so noble a man could have for a woman? Can you
believe, friend of my life, that you have made me such a woman as
would be perfect in your eyes?”
He made no reply, and, still holding him in her arms, she raised
her head to look into his face. He was regarding her with a strange
and distant wistfulness, and there shone in his eyes a pale, far light
that stretched through infinite space. A faint smile played upon his
lips, the feeble pressure of his hand closed upon hers.
“You will not leave me, will you?” she pleaded. “You will come
back to health, my friend. You will teach me, you will guide me. The
world will be bright and beautiful, for all our suffering has been
borne. We belong each to the other, my friend, in friendship, trust,
and sympathy.”
Still he smiled as he looked into her face; and as he smiled, and
she saw the strange, far light that shone from so inconceivable a
distance in the awful depths of his eyes, her eager heart found a
bridge of glass spanning the gulf between them. Then he sighed
deeply, and his eyes rolled upward. She sprang from the bed to her
feet.

“Dr. Malbone!” she cried, in a suppressed voice, “quick! he has
fainted!”
The physician, who had stepped a little way apart, came forward
and looked down into the still face of his friend. Then he glanced up
at the young woman, who was trembling with eager impatience.
“There is nothing to do,” sadly replied Dr. Malbone; then he
passed round the bed, took the young woman gently by the arm,
and, in a kind voice, said, “Come with me.”
She went with him, wondering, and looking over her shoulder
toward the bed. He led her into an adjoining room, closed the door,
and placed a chair for her.
“No, Dr. Malbone!” she protested. “How can I, when he needs us
both so much? Hurry back to him; I will stay here if you wish.”
“No,” replied the physician; “my place is here.”
A look of desperate eagerness settled in her face, and she was
listening intently for a sound from the other room. The physician
regarded her pityingly, as she stood trembling in an agony of
impatience and apprehension. Unable to control herself longer, she
seized him by the arm, and cried,—
“Dr. Malbone, you know best, but I can’t bear to leave him! Do
you know that I fear he will die? He is all the world to me, and I
can’t bear to let him go. Do you understand that? I want him to live.
I want to show him what a good woman’s trust and love can be. I
want to give my whole life to his happiness. I want to atone for all
the evil and suffering that I have brought upon him. I want him to
know that he has found peace and a refuge at last. Dr. Malbone, go
and save him!”
Dr. Malbone took her hands in his, and said,—
“Will you try to understand what I am going to say?”
“Yes, yes!” she answered.
“Then command all the strength of your soul.”
“Dr. Malbone!” she gasped, peering into his eyes, her face
blanching.

With pity and tenderness the physician said,—
“Our friend is dead; he died in your arms.”
THE END.

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