As a result, the enforcement or judicial practice which would provide the examples of successful application of Article 101(3) TFEU is virtually non-existent. These trends have led to the creation of a strong presumption that «hardcore restraints» falling outside the scope of the BERs will be very unlikely to satisfy Article 101(3) TFEU. It has been also noted that unlike the US judiciary, which was willing to rethink and review its application of the per se illegality rules based on the formalistic criteria, the ECJ relies heavily on precedent and rarely explicitly departs from its previous rulings.
. To be clear, the ECJ appears in Pierre Fabre to introduce a preliminary Article 101(3) TFEU assessment when determining whether an agreement should be viewed as a «restriction by object» and therefore falls under application of Article 101(1) TFEU. Potentially, this could aide parties seeking to exempt their otherwise «hardcore» agreement or practice at an early stage, before the full-scale uncertainty of the Article 101(3) TFEU assessment. T
an attempt to facilitate the further integration of a «more economic approach» into the Article 101(1) TFEU assessment.