This article aims to evaluate one of the many contributions of Richard Markovits` ECONOMICS AND THE INTERPRETATION AND APPLICATION OF U.S. AND E.U. ANTITRUST LAW on our understanding of U.S. and European antitrust law. This particular contribution consists of the opposition criteria used in markovits` study on the interpretation of Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU). This article also examines the claim that none of these tests are a test of economic inefficiency of illegality. In order to achieve its objective, the article first addresses the `specific anti-competitive intent test`, which is proposed as a criterion of illegality under the prohibition in Article 101 and the prohibition of abuse in Article 102 TFEU, before moving on to separate discussions on the criteria of illegality in the specific contexts of Article 101 TFEU and later Article 102 TFEU. The article notes that at least in the EU, but perhaps also in the US, there is still considerable ambiguity regarding some of the most fundamental concepts of antitrust law, such as „competition on the merits“. The article concludes that there is considerable room for discussion and disagreement as to what makes conduct anti-competitive, whether it is the type prohibited by Article 101 TFEU or the type prohibited by Article 102 TFEU. Due to its peculiarities, the luxury goods market is just as interesting for lawyers as it is for other professions such as economists or sociologists. These characteristics play an important role in the legal regulation of the market.

Although the starting point is competition law, the assessment of anti-competitive conduct under Article 101 TFEU cannot be complete without recourse to the policy and rules of intellectual property law. With the growing importance of Internet sales, new issues have been raised with competition authorities and appeal courts, such as the legality of different types of online restrictions in selective distribution systems. This paper takes a combined approach to intellectual property and competition law on these issues and provides information and comments on EU case law, focusing on the recent CJEU decision in the Coty case. The subtleties of the interaction between the different rules and exemptions of competition law are particularly evident in the present case. However, the Coty judgment, which is limited by its factual structure, may serve as clarification on the luxury competitive treatment of certain online sales bans within the SDS, while there will certainly be further discussions and developments in national case law on other Internet-related competition law restrictions pending further clarification by the CJEU. Most-favoured-nation (MFC) clauses adopted by online platforms in their respective contractual relationships ensure that an online platform treats the platform as favorably as the provider`s most-favored-nation customer in terms of price, availability and similar terms of a particular transaction. These clauses are a fundamental aspect of the business models of some of the world`s largest companies such as Apple, Amazon, Expedia, etc. The impact of these clauses on competition has been one of the main concerns of more than a dozen competition authorities around the world in recent years. The competition authorities concerned have adopted different approaches and achieved different substantive and procedural results, sometimes in proceedings concerning the application of the same rule of law against the same undertaking. This is best demonstrated by the investigations launched against certain online travel agencies in Europe. This article postulates that such divergent approaches lead to legal and commercial uncertainty as well as procedurally unfair and substantially incorrect assessments.

To correct this sub-optimal situation, the article provides a comprehensive and principles-based approach to the assessment of platform MFC clauses in competition law – in particular in EU competition law. What is the object or effect of preventing, restricting or distorting competition within the common market For the first time, the European Commission`s 2011 Horizontal Guidelines contain a section devoted exclusively to the analysis of competition in the `pure` exchange of information, i.e. the exchange of information that does not justify any other anti-competitive behaviour. By means of a counterfactual analysis, this article seeks to clarify whether the Guidelines merely codify the rather controversial case-law of the Court of Justice in this area or whether and to what extent they introduce a refined – and economical – approach to the assessment of information exchange. To this end, the analytical framework of the guidelines is defined before they are applied to four important cases of information sharing: John Deere, Asnef-Equifax, T-Mobile Netherlands and, more recently, Dole. It will become clear that the guidelines are trying to strike a balance between `just enough economic efficiency` and `just enough legal certainty`. They limit the finding of a contested restriction of competition to a very limited number of cases and aim to encourage undertakings in the internal market to exchange such information, which in fact increases efficiency and ultimately benefits consumers. When the EU`s predecessor, the ECSC, was founded in 1951, the founding fathers had in mind to regulate competition in order to promote market integration and protect economic freedom.

According to many researchers, and as legislation and case law show, the EU has changed its competition policy over time. It should be noted that the objective of protecting economic freedom has largely shifted to consumer protection. Has this change of focus led to excessive regulation of the vertical agreement sector and, by restricting the freedom of contractors in these agreements, has the EU finally embedded itself in the principle of the founding fathers` vision of market economy regulation? It has already been established that Blacksmiths has a 24 % share of the relevant market and Marnier a 20 % share of the relevant market.