Competition on the merits

Ibáñez Colomo, Pablo ORCID: 0000-0001-7019-0645 (2024) Competition on the merits. Common Market Law Review, 61 (2). 387 – 416. ISSN 0165-0750

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Abstract

This article examines the meaning and contemporary relevance of the notion of competition on the merits in Article 102 TFEU case law. It also considers whether a finding of abuse presupposes that a practice is “abnormal” or amounts to a “wrongful act”. The analysis identifies friction between the old and the most recent case law. This friction was exposed in Servizio Elettrico Nazionale. Seminal rulings such as Hoffmann-La Roche, where the notion of competition on the merits was introduced, are grounded on the assumption that it is possible to distinguish, ex ante and in the abstract, between lawful and unlawful conduct. The case law that followed moved away from these ideas and clarified that whether or not a practice amounts to an abuse is typically a context-dependent inquiry.Against this background, the article provides a structure that reconciles the old and the newstrands of case law and shows that there is a place for competition on the merits within Article 102TFEU.

Item Type:	Article
Official URL:	https://kluwerlawonline.com/Journals/Common+Market...
Additional Information:	© 2024 Kluwer Law International
Divisions:	Law
Subjects:	K Law
Date Deposited:	07 Feb 2024 14:42
Last Modified:	16 Nov 2024 18:45
URI:	http://eprints.lse.ac.uk/id/eprint/121967

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