Table of Contents: I. Introduction. – II. Overview of the case. – III. The dossier(s). – IV. The path not taken. – V. Conclusion. – Annex.
Abstract: Consten and Grundig was fundamental in shaping EU competition law and giving it its distinctive character. Issued in 1966, before the creation of a vast body of EU case law on competition, it introduced many of the fundamental concepts and guiding principles of EU competition law. Especially its emphasis on market integration and the Court’s treatment of vertical agreements through a purportedly “formalist” approach remain both influential and controversial to this day. The release of the dossier de procédure sheds light on the thought processes that led to this judgment. The Court’s choice to stick with the “object” analysis when dealing with vertical restraints harmful to market integration was by no means unavoidable. The parties and the intervening governments followed an intricate litigation strategy, informed by robust argumentation and a wealth of evidence based on economic data and comparative law, which was never analysed in its entirety by the Court or the subsequent literature. The dossier helps contextualise the Court’s choice to disregard this line of argumentation and to underline the centrality of the single market imperative for the application of competition law. At the same time, it provides a valuable insight into how the various actors involved in the dispute (not just the parties and the Court but also personally the lawyers, and the representatives of the States) perceived their role and interacted with each other during those early, formative days of EU competition law.
Keywords: Consten and Grundig – competition law – vertical agreements – exclusive distribution – restrictions by object – market integration.
* Researcher, European University Institute, firstname.lastname@example.org.