The thesis at hand focuses on exclusionary abuses of dominant position, which are prohibited in accordance with Article 102 of the Treaty on the Functioning of the European Union (TFEU). Exclusionary abuse defines any anti-competitive conduct by businesses holding a dominant position, which impedes effective competition by excluding competitors and thereby harming consumers. The European Commission reformed the approach to exclusionary abuses of dominant position by adopting the Communication from the Commission – Guidance on the Commission’s enforcement priorities in applying Article 82 (Nowadays Article 102 TFEU) of the EC Treaty to abusive exclusionary conduct by dominant undertakings. The purpose of this document is to ensure a unified framework regarding the control of exclusionary abuses of dominant position and to move from form-based approach to an effects-based approach.
Form-based approach under Article 102 TFEU is typical for older jurisprudence of the Court of Justice of the European Union (CJEU), which in its judicial review focused more on categories of conduct, such as exclusive dealing, tying and bundling, predatory pricing, refusal to deal and margin squeeze.
Within individual categories the jurisprudence shaped different criteria for their illegality. Such approach is problematic since various commercial practices frequently serve the same purpose. Therefore, focusing solely on the type of conduct of the dominant undertaking is not reasonable.
A more modern effects-based approach focuses on the impact of the anti-competitive conduct of the dominant undertaking on consumers. Its implementation requires a more detailed analysis of the impact on price, quantity, quality and variety.
Adopting such an approach would ensure a unified treatment of different commercial practices, serving the same purpose and with the same effects. The advantages of an effects-based approach had been recognized and used in the United States of America before the European Union. The selected and presented jurisprudence issues of the United States of America shall therefore serve as a model of an effects-based approach.
The results of the analysis also reveal that the Guidance Paper by the European Commission introduces a hybrid approach, which although based on CJEU jurisprudence, has been upgraded with elements of modern economics regarding effects-based approach. The first decisions of the European, made after adopting the Guidance paper and jurisprudence of the United States of America, demonstrate the qualitative differences between the effects-based approach and the form-based approach. The major objective of effects-based approach is to analyse empirical data in the case at hand and inference thereof, whether dominant undertaking affected consumers’ interests.
In line with the identified deficiencies of the Guidance paper and presented fundamental characteristics of effects-based approach, a methodology of an effects-based approach, which is in accordance with EU law and less detailed than the Guidance paper itself, is proposed.
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