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Hell Freezes Over: A Climate Change for Assessing Exclusionary Conduct Under Article 102 TFEU

Journal of European Competition Law and Practice (OUP), first published online: October 25, 2012, DOI: 10.1093/jeclap/lps059. Print version: 4(1) JECLAP 32-50 (2013).

19 Pages Posted: 7 Nov 2012 Last revised: 19 Oct 2014

Mel Marquis

European University Institute - Department of Law (LAW)

Ekaterina Rousseva

European Union - Directorate General for Competition

Date Written: July 1, 2012

Abstract

The authors analyze the judgment of the European Court of Justice in the Post Danmark case, and discuss its implications. According to the authors, the ECJ's judgment in Post Danmark suggests a more rigorous application of Article 102 TFEU to exclusionary pricing practices by dominant firms. It clarifies that the core criterion by which to judge exclusionary conduct under Article 102 is its actual or likely effect on competition, and thereby on consumers. And it suggests that the ECJ is embracing fundamental concepts advocated in the Commission's Guidance Paper on exclusionary conduct under Article 102. The greater alignment of law and policy contributes to enhanced legal certainty.

Keywords: competition law, antitrust, pricing abuse, exclusionary conduct, Post Danmark, Article 102, abuse of dominance

Suggested Citation

Marquis, Mel and Rousseva, Ekaterina, Hell Freezes Over: A Climate Change for Assessing Exclusionary Conduct Under Article 102 TFEU (July 1, 2012). Journal of European Competition Law and Practice (OUP), first published online: October 25, 2012, DOI: 10.1093/jeclap/lps059. Print version: 4(1) JECLAP 32-50 (2013).. Available at SSRN: https://ssrn.com/abstract=2171693

Mel Marquis (Contact Author)

European University Institute - Department of Law (LAW) ( email )

Via Boccaccio 121 (Villa Schifanoia)
I-50122 Firenze
ITALY

Ekaterina Rousseva

European Union - Directorate General for Competition ( email )

Place Madou, Madouplein 1
Saint-Josse-ten-Noode/Sint-Joost-ten-Noode
Brussels, B-1049
Belgium

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