The EU Control of Unfair Competition Practices: The Interpretation of Unfair Pricing

Abstract

This final chapter addresses primarily the question of what constitutes an unfair price or other trading conditions.

A historical interpretation of Article 102 TFEU challenges the idea that recognition of unfairness is a distinctive feature of EU unfair competition law. This interpretation also receives support from the dynamics of the Treaty and the harmonisation of unfair competition acts and intellectual property rights.

The analysis of certain provisions shows that the terms 'prejudice to the consumers,' 'unfair' and 'competitive disadvantage' gain particular relevance in the light of public policy before the courts.

The meaning of 'undistorted' competition within the approximation of laws gradually loses its relevance in favour of an established Union case law on unfair competition and hybrid enforcement outcomes may arise where particular aspects of protected rights fall under the ambit of unfair competition acts and of EU competition law. It is critical when the latter leaves unfairness as 'exceptional circumstances' of intellectual property rights that are insufficiently substantiated before the courts as unfair competition acts.

Therefore, a legislative proposal for an EU Control Regulation of such unfair competition acts aims to ensure legal certainty and predictability and to enforce the balance of fair versus unfair competition practices.

The chapter concludes with the detailed reasons for drafting such a regulation.

Keywords: EU competition law, unfair pricing, Article 102 TFEU