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4 - The Notion of Abuse within the Meaning of Article 102 TFEU

from Part II - Analysis

Published online by Cambridge University Press:  23 June 2018

Pablo Ibáñez Colomo
Affiliation:
London School of Economics and Political Science
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Summary

Potentially abusive practices can be subject to a rule or a standard, depending on whether effects on competition are required to establish an infringement of Article 102 TFEU. As the case law stands, practices subject to a prohibition rule include exclusive dealing, loyalty rebates and tying strategies. Practices subject to a standard include, inter alia, refusals to deal with rivals and the so-called ‘margin squeeze’ abuses. It is also clear from the administrative practice – and as a result the case law – has focused, by and large on exclusionary behaviour. The analysis in Chapter 4 focuses on the practices that have dominated enforcement: predatory pricing, exclusivity and rebates and leveraging strategies. The main conclusion is that the case law has evolved in an inconsistent manner: often, like practices are not treated alike in the case law. The analysis also reveals that the observed inconsistencies can be attributed to the behaviour of the European Commission in repeated interactions. The authority has consistently sought to deviate from the legal test set out in the case law. Contrary to what is observed in the context of Article 101(1) TFEU, the case law on the notion of abuse has not proved to be resilient.
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Publisher: Cambridge University Press
Print publication year: 2018

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