I attended a Kings College lecture given by Professor Richard Whish yesterday. Prof Whish gave a typically well-argued presentation designed to provoke the rehabilitation of Article 101(3) as a basis for competition law exemption. His suggestion (which he has also made to members of the DG Comp) is that more reasoned non-infringement decisions should be reached, in which Article 101(3) is applied, particularly in relation to matters such as online selling which (the world having moved on) are not addressed in any of the corpus of pre-self-assessment case law.

I can’t say I’m optimistic that the Commission will find the resources (and political willpower) to go in this direction. Article 101(3) looks set to remain the last refuge of the desperate for some time to come…