Conclusion: 1989-2006. The case law of this period continues to support the application of the MAAP when determining an agreement’s object. Based on the STM Test, the CJEU assesses whether the objective aim or purpose of an agreement within its specific legal and economic context is to restrict competition.147 There is little evidence of the orthodox approach being applied to agreements. Instead, the AG’s outline more nuanced aspects of the object criterion. This highlights how the Court seeks to understand the rationale behind an agreement: whether it seeks to restrict competition. The case law does, however, expose that the object criterion lacks absolute consensus and clarity relating to all its aspects. For instance, the defining factor between a pro-competitive purpose and a legitimate objective is unclear. A positive purpose is purportedly able to circumvent the application of the object concept whereas a legitimate objective is not. Additionally, the AG in Gøttrup-Klim referred to agreements performing more complex functions coming outside the remit of the object criterion, which are assessed in the abstract. These are all factors that require further scrutiny.148 145 This approach is also seen in a number of selective and exclusive distribution agreements. 146 See eg IAZ/Anseau (supra n61). 147 This includes considering the conduct of the parties and the circumstances surrounding the contract. 148 See chapters 3 and 4. This thesis rationalises the law as follows. It is clear that actual effects do not have to be demonstrated in order to find an anti-competitive object. Rather, the role of the object criterion is to tease out those agreements that are designed to restrict competition, hence there being no requirement that an agreement is successful or in fact has a physical effect on competition.149 STM requires that the effect on competition is “sufficiently deleterious”, which is conceivably why judgments often show the Court taking account of the potential and indeed actual effects of a restriction.150 Nevertheless, the standard of proof under the object heading is less onerous than when determining an agreement’s actual effect on competition. What is not resolutely clear from the Court’s perspective is the question of precisely why no actual effects need be shown under an object analysis. It is contended that the reason, certainly at this juncture, is less dependent on the necessary effect of the agreement and more on the fact the agreement itself intends, or has the ...
