Intent and competition law assessment: useless or useful tool in the quest for legal certainty?

Abstract:

Competition law is characterized by uncertainty: the vagueness and open-ended character of its provisions and the creative approach of enforcers and case-law indeed blur considerably the boundaries between lawful and unlawful conduct. It submitted that intent – which consists of a mental element coupled with a finalistic element – can be relied upon within the competition assessment as a useful disambiguating factor.

To do so, however, the case-law should come clear as to intent importance and relinquish the orthodox position pursuant to which intent would be immaterial or accessory for competition law assessment. This because such position, despite being reinstated in theory as a mantra, is in substance often disavowed: intent importance is particularly evident under an Article 102 TFEU perspective.

Furthermore, albeit in more limited cases, intent is also relied upon within Article 101 TFEU analysis, showing that its disambiguating role can be important for the whole competition law assessment.