How Can the Problems of Exclusionary Abuses under Article 102 TFEU be resolved?

Normal competition, if a dominant company offers better bargains than its rivals, may result in the rivals leaving the market. So any concept of exclusionary abuse needs to distinguish between foreclosure due to legitimate competition and “anti-competitive foreclosure”.

Any effects-based approach must identify anti-competitive effects. However, the Commission’s Guidance on exclusionary abuses suggests no such test. The Court of Justice accepted the Commission’s test of “loyalty-inducing” conduct. But that is ambiguous: customers may buy exclusively from the dominant company if it offers the best value. Article 102(b) TFEU, which prohibits “limiting” rivals’ possibilities, provides the test that is needed, without discouraging pro-competitive pricing.

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