The Concept of Abuse in EU Competition Law
By Pinar Akman
Under Article 102 TFEU (Treaty on the Functioning of the European Union), it has yet to be settled as to what exactly makes a practice abusive or how to measure the standard of harm. This lack of clarity creates uncertainty for businesses and, coupled with the current state of economics in this area, raises an important question of legitimacy. Using legal and economic approaches, this book inquires into the possible objectives of Article 102 TFEU and proposes a modern approach to interpreting 'abuse.' In doing so, the book establishes an overarching concept of 'abuse' that conforms to the historical roots of the provision, to the text of the provision itself, and to modern economic thinking on unilateral conduct. It therefore inquires into what Article 102 TFEU is about, what it can be about, and what it should be about regarding both objectives and scope. The book demonstrates that the separation of exploitative abuse from exclusionary abuse is artificial and unsound. It examines the roots of Article 102 TFEU and the historical context of the adoption of the Treaty. Additionally, it looks at the case law, policy, and literature on exploitative abuses, and, where relevant, on exclusionary abuses. It investigates potential objectives, such as fairness and welfare, as well as the potential conflict between such objectives. Finally, the book critically assesses the European Commission's modernization of Article 102 TFEU before proposing a reformed approach to 'abuse' which is centered on three necessary and sufficient conditions: exploitation, exclusion, and a lack of an increase in efficiency.
Publication Date: 2/3/2012