The Court of Justice in the archives project : analysis of the Consten and Grundig case (56/64 and 58/64)

Abstract

This working paper is part of the Court of Justice in the Archives Project. It focuses on an analysis of the dossier of the Consten and Grundig case. In Consten and Grundig the Court introduced many of the fundamental concepts and guiding principles of EU competition law. The release of the dossier de procédure sheds light on the thought processes that led to this judgment. The dossier confirms that the Court’s choice to stick with the “object” analysis when dealing with vertical restraints harmful to market integration, was by no means unavoidable; it presented a heavily contested legal issue, with strong arguments arguing for the opposite position. In fact, the parties and the intervening governments followed a litigation strategy, based on economic data and comparative law, which was never analysed in its entirety by the Court or the subsequent literature. In this way, the present study helps contextualise the Court’s choice to give precedence to the single market imperative when applying competition law over all other concerns: the Court understood itself as a driver of European market integration. Parallel to that, the dossier provides a valuable insight into how the various actors involved in the dispute perceived their role and interacted with each other during the formative days of EU competition law.