THE CONCEPT OF ABUSE IN EU COMPETITION LAW.

INTRODUCTION

I Purpose of the Book

II Scope and Outline

III Methodology

 

PART I

THEORETICAL AND HISTORICAL FOUNDATIONS

1 WELFARE AND OBJECTIVES OF COMPETITION LAW AND POLICY

I Introduction

II Welfare Economics, Different Understandings of Welfare and Efficiency
    A In General
    B Different Types of Efficiency and Efficiency Trade-Offs in Competition Policy
        i Different Types of Efficiency
        ii Efficiency Trade-Offs in Competition Policy

III Objectives of Competition Law and Policy
    A In General
        i The Harvard School
        ii The Chicago School
        iii The Post-Chicago School
    B Consumer Welfare and Total Welfare as Standards for Competition Law and

        Policy
    C Triangles, Rectangles and Trapezoids: Whose Interest Matters More?
    D Is Welfare All That Matters?

IV Conclusion

 

2 THE HISTORICAL ROOTS OF ARTICLE 102 TFEU

I Introduction

II Objectives of EU Competition Law and Policy

III Ordoliberalism and Ordoliberal Competition Policy

IV Insights from the Period leading to the Treaties of Rome
    A Germany
    B Europe

V The Highlights of the History of the Competition Rules in the Treaties of Rome
    A Back to Basics: From Messina to the ‘Spaak Report’
    B The ‘Spaak Report’
        i An Overview
        ii The Common Market and the Goal of Efficiency
        iii The Problem of Monopolies
        iv ‘Fair’ Competition
    C Drafting of the Competition Rules
    D The First Signs of Struggle: Proposal for Regulation 17
    E Early Commission Interpretation
    F Early Understandings of Dominance and Abuse

VI Implications for Article 102

VII Conclusion

 

PART II

TWO POTENTIAL OBJECTIVES: ‘WELFARE’ AND ‘FAIRNESS’

3 WELFARE IN ARTICLE 102 TFEU

I Introduction

II Article 101(3), the Welfare Standard and the Treatment of Efficiencies under Article 102
    A Why is there not an Equivalent of Article 101(3) in Article 102?
    B Is there a Pass-On Requirement for Efficiencies in Article 102?
    C Does Article 101(3) Set a Standard of ‘Consumer Welfare’?

III The Standard of Harm and the ‘Consumer Welfare’ Standard: A Critical Look at the Application of Article 102 by the Commission and the EU Courts
    A Are Effects Necessary for a Finding of Abuse?
    B On Whom or What should Harm (or Harmful Effects) be Demonstrated?

IV Conclusion

 

4 ‘FAIRNESS’ IN ARTICLE 102 TFEU

I Introduction

II Fairness and Ordoliberalism

III EU Case Law

IV Notions of ‘Fairness’
    A In General
    B Contract Law
    C The Similarity of Fairness Notions in Contract Law with Article 102 and its Im-

        plications
        i Inequality of Bargaining Power
        ii Duress, Economic Duress and Undue Influence
            a Duress and Economic Duress
            b Undue Influence
    D EU Consumer Law
        i Unfair Contract Terms
        ii Unfair Commercial Practices

V Conclusion

 

PART III

CONFLICTING OBJECTIVES IN PRACTICE: TWO CASE STUDIES.

5 A CASE STUDY ON ‘FAIRNESS’ VERSUS ‘WELFARE’: ‘UNFAIR PRICING’ AS AN ABUSE

I Introduction

II Scope of Inquiry

III EU Case Law on ‘Unfair Pricing’

IV Insights from Behavioural Economics on ‘(Un)Fair’ Prices

V Suggestions from the Literature on Operationalising the ‘Unfair Pricing’ Prohibition

VI Is the Prohibition of ‘Unfair Pricing’ Inherently Problematic?
    A Problems with Consistency, Certainty and Welfare
    B Inherent Irrationality?

VII A New Test
    A Business-to-Consumer Transactions
    B Business-to-Business Transactions
    C The Operation of the New Test

VIII Conclusion

 

6 A CASE STUDY ON ‘FAIRNESS’ VERSUS ‘WELFARE’: ‘DISCRIMINATION’ AS AN ABUSE

I Introduction

II Definitional Issues and the Operation of the Prohibition under Article 102 TFEU
    A Definitional Issues
    B The ‘Competitive Disadvantage’ Requirement and the Operation of the

        Prohibition in Practice

III Should Discrimination be an Abuse under Article 102 TFEU?
    A Welfare
    B Fairness
    C Fairness versus Welfare

IV Reconciliation

V Conclusion

 

PART IV

MODERNISING THE APPROACH TO ‘ABUSE’

7 THE ‘REFORMED’ APPROACH TO ‘ABUSE’

I Introduction

II The Commission’s ‘Reform’ of its Approach to ‘Abuse’
    A In General
    B The Standard for Price-Based Exclusionary Conduct: The ‘As Efficient Com-

        petitor’ Test
    C ‘Objective Necessity’ and ‘Efficiencies’

III Is an Economic, Effects-Based Approach Inherently Problematic?

IV Choice: The Problem with the ‘Reformed’ Approach?

V Conclusion

 

8 A NEW APPROACH TO ‘ABUSE’

I Introduction

II Exploitation as a Necessary Condition

III Exclusion as a Necessary Condition

IV A Lack of an Increase in Efficiency as a Necessary Condition

V Evaluation of the New Approach

VI Conclusion

 

CONCLUSION

 

Bibliography

 

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