Exclusionary abuse, the rule of law, and the effectiveness of the European Commission

Publishers Abstract
There is no clear and generally recognised concept or definition of exclusionary abuse of a dominant position under art.102 TFEU. This creates legal uncertainty, makes it difficult for the Commission to act decisively, and leads to delays.

It leads to pressure on supposedly dominant companies to offer commitments even in situations in which it is not clear that there is any legal need for them to do so. The most topical example of the inconvenience caused by the lack of legal certainty is the suggestion that if a conglomerate group includes one company that is dominant in one sector, the group must extend to all the group’s competitors the treatment that it gives to each of its subsidiaries.

This would lead to less competition rather than more. The solution is to regard art.102(b) ('limiting production, markets or technical development to the prejudice of consumers') as the definition of exclusionary abuse, as the EU Courts have done.

Sweet and Maxwell: European Law Review http://www.sweetandmaxwell.co.uk/catalogue/productdetails.aspx?recordid=427&productid=6968

ESO: Background information:Dominant Position http://www.europeansources.info/record/competition-policy-dominant-positions/

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