Coding Non-competition Interests Under Article 101 TFEU

Coding Non-competition Interests Under Article 101 TFEU: A Quantitative and Qualitative Study with Dr. Or Brook.


The role of non-competition interests in the enforcement of EU competition law is subject to a decades-long debate. The vague wording of Article 101 TFEU, which prohibits anti-competitive agreements, suggests that there is room for consideration of non-competition interests – such as sustainability, employment or culture. Yet, it details neither the precise extent of such role nor the test guiding the balancing between competition and non-competition interests. The presentation will focus on Or Brook’s book proposal which takes a novel empirical approach based on a systematic content analysis (“coding”) of all Article 101 TFEU public enforcement proceedings investigated by the Commission, EU Courts and the NCAs and courts of five representative Member States (France, Germany, Hungary, the Netherlands, and the UK) from the creation of the EEC in 1958 through 2017.

Supported by empirical evidence, the Book proves wrong the commonly-held view that the modernisation of EU competition law in May 2004 removed non-competition interests from the enforcement of Article 101 TFEU. It shows that non-competition interests have played and continue to play an important role. Nevertheless, the Book reveals remarkable shifts in the role of non-competition interests in the post-modernisation era: a shift in the types of balancing tools employed in practice, reflecting a transition from explicit-substantive to implicit-procedural balancing tools; a shift in the locus of the tools, from EU- to Member States-based balancing; and a shift from an active to a passive role of the EU Courts in shaping the balancing principles.


Or Brook is a Lecturer of Competition Law at the University of Leeds School of Law. Her main areas of focus are international, EU and comparative competition law and regulation, and empirical legal research. Before joining the University of Leeds, Or completed her PhD in the Amsterdam Centre for European Law and Governance (ACELG). During that time, Or was also a visiting researcher at the Centre for Law, Economics and Society in University College London (UCL), the Centre for Competition Policy (CCP) in the University of East Anglia, and the Tilburg Law and Economics Centre (TILEC) in Tilburg University.

Or holds an LLB in economics and law from the Hebrew University (distinction) and an LLM from the University of Amsterdam in European Competition Law and Regulation (distinction). Before re-joining academia, she was an associate attorney dealing with commercial litigation matters. Or is an external advisor on competition law matters for the UK Fair Trade Foundation.


All welcome. This is a free event, though registration is required via Eventbrite.