Competition on the merits

Abstract

This article examines the meaning and contemporary relevance of the notion of competition on the merits in Article 102 TFEU case law. It also considers whether a finding of abuse presupposes that a practice is “abnormal” or amounts to a “wrongful act”. The analysis identifies a friction between the old and the most recent case law. This friction was exposed in Servizio Elettrico Nazionale. Seminal rulings such as Hoffmann-La Roche, where the notion of competition on the merits was introduced, are grounded on the assumption that it is possible to distinguish, ex ante and in the abstract, between lawful and unlawful conduct. The case law that followed moved away from these ideas and clarified that whether or not a practice amounts to an abuse is typically a context-dependent inquiry. Against this background, the article provides a structure that reconciles the old and the new strands of case law and shows that there is a place for competition on the merits within Article 102 TFEU.

Keywords: Article 102 TFEU, competition on the merits, exclusion, 'as efficient competitor' principle, Hoffmann-La Roche. Servizio Elettrico Nazionale

JEL Classification: K21, L14, L24, L41, L42