Exploitative Abuses: The Scope and the Limits of Article 102 TFEU

Abstract

This paper establishes the scope and principles for the application of Article 102 TFEU to exploitative abuse, in light of the increased interest in applying this provision against dominant digital platforms. After establishing the policy challenges to using competition law to address unfair conduct by dominant undertakings, we show the importance of establishing precise scope and limiting principles. By a comprehensive study of Commission decisions and judgments of the European Court of Justice that pertain to exploitative abuse we derive limiting principles for each type of abuse and then generalise these into some overarching principles for all exploitative abuse cases. We test these limiting principles against decisions of the German and French competition authorities in cases considering the terms of trade between platforms and press publishers. Finally, we examine the design of remedies and reflect on the imposition of procedural remedies to address exploitative abuses and the opportunities and risks this generates.

Keywords: Art. 102 TFEU; exploitative abuses; unfair trading conditions; digital platforms; antitrust remedies