Abuse of a Dominant Position and Public Policy Justifications: A Question of Attribution

It is an optimal way of analysis not to permit public policy justifications under Article 102 TFEU advanced by dominant undertakings. The reason is that there is always the potential for state involvement in the public interest to occur, triggered, in part, by the incitement of dominant undertakings as part of the democratic processes.

Claims based on public policy justifications have never been shown to be genuine, as an evidential matter, but, rather, have been strategically used in litigation, whereas there is exceptionally little case law that finds incitement to public authorities to act as an abuse of rights. In addition, there is added-cost in terms of legal analysis if one permits, in principle, public policy justifications under Article 102 TFEU, since competition law analysis may potentially be distorted in the majority of cases, as has already happened in the case of margin squeeze abuse.

Genuine public policy justifications are more mythical than real, and given the potential for state involvement, academic debate and reasoned Court judgments should, instead, elaborate on the issue of attribution of the market-distorting effect to the undertaking or the state.

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