Exploitative Abuse of a Dominant Position: A Bad Idea That Now Should Be Abandoned
26 Pages Posted: 25 Feb 2021
Date Written: January 24, 2021
Exploitative abuse of a dominant position is a long-recognized category of infringements of what is now Article 102 TFEU. Article 102’s prohibition originated in the EEC Treaty, which broke down barriers and prohibited restraints on competition so the free market could reign. But every exploitative abuse case is a breach of faith in the market. And punishing exploitative abuse weakens the rule of law: No rule or standard controls, so potential infringers have no way to know what is expected of them. Exploitative abuse should be abandoned, and this essay argues that doing so would not disrespect the text of Article 102, ignore the intentions of the EEC Treaty’s drafters, or undermine any stated goal of the Treaty.
Keywords: Article 102 TFEU, excessive pricing, exploitative abuse, unfair pricing
JEL Classification: K21, L43
Suggested Citation: Suggested Citation