A Critical Inquiry Into ‘Abuse’ in EU Competition Law

Abstract

Disagreement abounds on what exactly constitutes an ‘abuse’ within Article 102 TFEU, EU competition law’s prohibition of an abuse of a dominant position. This situation is highly undesirable, given the important role this prohibition is expected to play in alleviating concerns about substantial market power and its use in important sectors, typified by actions against the ‘big tech’. This article responds to this problem by analysing and synthesising the jurisprudence of the Court of Justice of the European Union and its evolution to establish the constituent elements of an exclusionary ‘abuse’. The article corrects crucial legal misconceptions including the putative dichotomy between violations ‘by object’ and ‘by effect’; the assumed disparate legal tests for pricing and non-pricing conduct; and, the lost distinction between the as efficient competitor test and the as efficient competitor standard. This critical inquiry allows one to draw concrete predictions on the future development of this challenging-yet-vital area of law.

Keywords: Abuse of a dominant position; EU competition law; digital markets; more economic approach; Article 102 TFEU; Court of Justice of the European Union

JEL Classification: K21, K20, L41, L44