Under Article 102 TFEU, dominant firms are allowed to compete, but only to the
extent their market behaviour does not constitute an abuse. Needless to say,
the wording of the article neither explains what an abusive restriction of
competition is nor how such a practice can be identified. Rather than
developing a one-size-fits-all test applicable to all forms of market
behaviour by dominant firms, the European Court of Justice (ECJ) and the
General Court (ex Court of First Instance) have set out a system of tests for
separate categories of conduct. Drawing on the full range of the EU Courts’
relevant case law, this very useful book analyses the conditions that must be
fulfilled for a broad range of business practices to be deemed abusive within
the meaning of Article 102 TFEU, and also identifies the criteria that must be
fulfilled for a practice to be ‘objectively justified’. The potentially
abusive practices studied here (as defined in the relevant case law) include
• predatory pricing;
• margin squeezing;
• exclusivity agreements;
• loyalty rebates;
• refusals to supply to induce exclusivity;
• secondary line price discrimination;
• vexatious litigation;
• acquisitions of intellectual property rights (IPRs);
• refusals to supply necessary inputs;
• provision of storage equipment on the condition of exclusive use;
• selective above-cost price cuts;
• technological integration; and
• refusal to license IPRs.
The author also contrasts the Commission’s decisional practice with the case
law, assesses approaches under U.S. antitrust law to similar forms of conduct,
and incorporates insights from economic theory. This study greatly enhances
our understanding of the distinction between abusive conduct and lawful
competition. In the course of its clarification of the EU Courts’ responses to
individual forms of market behaviour, an overall approach to the
identification of exclusionary abuses under Article 102 TFEU begins to come
into view. Apart from the important new synthesis the work offers legal
scholars, there can be little doubt this book will prove a valuable asset and
even an inspiration to competition lawyers.
Acknowledgements. 1. Introduction. 2. Designing a Legal Framework to
Distinguish Lawful from Unlawful Exclusionary Conduct: Challenges and
Approaches. 3. Identifying Exclusionary Abuses under Article 102 TFEU:
Objectives, General Concepts and the Development of a Spectrum of
Conduct-specific Tests. 4. Form-based Tests. 5. Intent-based Tests. 6.
Effect-based Tests 1: Harm to Competition. 7. Effect-based Tests 2: Additional
Harm to Consumers (Refusals to License IPRs). 8. The Concept of Objective
Justification. 9. The Spectrum of Tests: Implications. 10. Final Remarks.
References. Bibliography. Cases. Commission Decisions. Opinions. U.S. Cases.
Regulations. Commission Notices and Guidelines. Green Papers. Speeches.