n Without Prejudice - Avoiding the pitfalls : competition law




In competition law the exercise of "characterisation" of a firm's conduct could lead to the discovery of perfectly acceptable, even pro-competitive, behaviour in what is initially thought to be the most egregious form of anti-competitive conduct. In addition, "characterisation" has the potential to blur the lines between prohibited conduct and conduct which should be subject to evaluation in terms of its effects on competition. To avoid the pitfalls of literalism and to decide where the dividing line between and effects based (rule of reason) prohibitions lie, one must look for effects (potential or actual) of an agreement or concerted practice on competition, even if one does so "notionally" in the case of per se prohibited conduct.


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