The Price/Non Price Exclusionary Abuses Dichotomy: A Critical Appraisal

Abstract

The recently published EU Commission guidance introduces a sharp dichotomy between price and non-price exclusionary conduct. For price-related conduct, only the exclusion of at least as equally efficient competitors as the dominant firm triggers antitrust intervention. The Commission recognizes that “in certain circumstances a less efficient competitor may also exert a constraint which should be taken into account when considering whether a particular price-based conduct leads to anticompetitive foreclosure”, but this possibility is given less weight than was previously the case in the 2005 DG Comp Staff Discussion paper. This brief study will discuss the emergence of the price/non price dichotomy and will critically assess its impact in EC competition law. It will first examine the validity of the assumption inherent in the introduction of the dichotomy, that is, that less efficient competitors are not “worthy” of competition law protection and that a filter should be introduced in order to limit accordingly the scope of Article 82 EC