GCLC - Restriction of Competition and Exclusionary Abuse Under Article 102 – The Solution

Abstract

A clear concept of restriction of competition is needed for a definition of exclusionary or anti-competitive abuse. The Post Danmark II judgment has not provided this, and neither did the Commission’s Guidance paper. Discussion of an “effects-based” approach is not useful without a way of distinguishing between legitimate and anticompetitive “effects”. The results of the retroactive rebates cases could all be explained by saying that the rebates were only one of the many ways that the companies used to obtain de facto exclusivity. That would mean that retroactive rebates in themselves are not necessarily illegal, which seems correct (and which seems to follow from the Post Danmark II judgment). A less well known series of judgments shows that Article 102(b) prohibits conduct limiting the production, markets or technical development of competitors of the dominant company, if harm to consumers results. This provides a valuable definition of restriction of competition and of exclusionary abuse. If it were considered to provide an exhaustive definition, the law would be greatly improved and clarified.