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Brief 15: Art or Science? Assessing efficiencies under the Commission’s Article 81(3) Notice 23.07.04

This Brief discusses the EC Commission Notice on Article 81(3) exemptions. The Notice describes a framework for the economic analysis of how an agreement that is held to restrict competition may nevertheless be lawful because it meets the four efficiency defence criteria of Article 81(3). The Notice seeks to follow the approach taken on efficiencies in horizontal mergers, but as we explain in the Brief, there are several difficulties in extending this framework from mergers to the assessment of vertical and horizontal agreements.

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