The Evolution of Article 81(3) of the EC Treaty

Abstract

Article 81 of the EC Treaty has a bifurcated structure which has left an enduring mark on its interpretation and application. For forty years decisions under Article 81(3)were constitutive acts whereby restrictive agreements caught by Article 81(1)were released from the prohibition. The 'modernisation' of EC competition law removed the constitutive element and rendered Article 81(3) a directly applicable exception. This article considers the history of Article 81(3), the endemic problems of its place in the Treaty and its modern incarnation as an efficiency defence.