Is the Effects-Based Approach Too Cumbersome?: Taking Stock of Recent Practice and Case Law on Article 102 TFEU

Abstract

This paper examines the evolution of the case law of European Union (EU) Courts after the adoption of the ‘Guidance on the Commission’s enforcement priorities in applying Article 102 TFEU to abusive exclusionary conduct by dominant undertakings’. The focus is on the practical and conceptual challenges that the so-called ‘effects-based’, ‘more economic’, approach has created, how the EU Courts have dealt with them, and whether the case law is becoming too demanding, regarding at least some practices, to the point of making the enforcement of Article 102 TFEU excessively difficult or at least leading to chronic underenforcement. It is an observable fact that the amount of time and resources devoted to each Article 102 TFEU case has greatly increased. This is so even if the Commission has not applied an extreme version of the ‘more economic’ approach that some were advocating, but a more pragmatic and realistic one. The recent case law of EU Courts has been sending mixed messages. On the one hand, sometimes the legality of decisions is reviewed against a standard of ‘actual’ (not just ‘potential’) exclusionary effects, ‘case specific’, ‘tangible’ evidence of ‘actual capacity’ to produce exclusionary effects is required, or a high evidentiary standard is set also for some complex assessments. On the other hand, some judgments exclude such requirements where an undertaking in a dominant position uses means other than those governing competition on the merits, exclude also the necessity of the ‘as-efficient-competitor’ (AEC) test, do not require ‘complex’ counterfactuals, and give increasing importance to examining the impact on non-price parameters such as choice, quality and innovation. Yet, overall, the slogan of ‘competition, not competitors’ that is often used to justify inaction, against a new backdrop of systemic epistemological doubt, may be having a lasting impact.

Keywords: European Union, antitrust, competition, abuse of dominance, evidence

JEL Classification: K21, K40, K42, L40, L41