Article 102 TFEU as a Tool for Market Regulation: “Excessive Enforcement” Against “Excessive Prices” in the New EU Member States and Candidate Countries

Introduction:

Every student attending classes on EU competition law learns that Article 102 TFEU sanctions two categories of abuses: exploitative and exclusionary. However, every student also learns that the existing case law on the first type of unilateral practices is quite limited in comparison to the second category of abuses. Even though the Court of Justice of the European Union (CJEU) has recognised that excessive prices and unfair contract terms can be sanctioned under Article 102(a) TFEU, the European Commission has primarily targeted exclusionary practices. As a consequence, the category of exploitative abuses has largely remained confined to the textbooks of EU competition law.

In order to place this comparative study in the EU context, the paper starts with a historical overview of the objectives that the EU founding fathers had in mind when drafting Article 102 TFEU. Secondly, it provides an overview of the diverging methodology developed in economic scholarship and competition enforcement practice for determining when the price should be considered excessive. Finally, the paper conducts a cross-country comparison of the most relevant decisions adopted by the NCAs of the selected jurisdictions sanctioning excessive pricing.