Beyond the 'More Economics-Based Approach': A Legal Perspective on Article 102 TFEU Case Law

Abstract

The interpretation of Article 102 TFEU by the EU courts has given rise to considerable controversy in the past decade. However, it is not always well understood. The purpose of this contribution is to uncover the rationale underpinning the case law on exclusionary practices and to provide a legal perspective on ongoing debates. An analysis of the case law reveals that some practices are deemed prima facie abusive while others are only subject to Article 102 TFEU insofar as they are likely to have an anticompetitive effect. This difference mirrors the object/effect dichotomy that is observed in the context of Article 101 TFEU. The criteria used to draw the line between abuses ‘by object’ and ‘by effect’ is also the same. Against this background, it appears that the ‘frictions’ observed in the case law can be understood and addressed following the principles sketched by the ECJ in Cartes Bancaires.