Handbook on European Competition Law

Handbook on European Competition Law

Substantive Aspects

Elgar original reference

Edited by Ioannis Lianos and Damien Geradin

Handbook on European Competition Law: Substantive Aspects sets the context for examination of substantive law by reviewing and analyzing the goals of competition law. It then covers the substantive building blocks of EU competition law, including horizontal and vertical agreements, cartels, mergers, and also provides valuable coverage of the interaction between competition and regulation, hub and spoke collusion, and information exchange agreements. The importance of the abuse of dominance doctrine is reflected in three discrete chapters considering exploitative abuses, exclusionary pricing abuses, and exclusionary non-pricing abuses.

Chapter 11: Abuse of dominance: exclusionary non-pricing abuses

Renato Nazzini

Subjects: economics and finance, competition policy, law - academic, competition and antitrust law, european law


The assessment of non-pricing abuses under Article 102 TFEU remains uncertain and controversial. On the one hand, the case law of the Union courts does not always articulate clear tests. Even to the extent that it does, there is hardly ever an express rationale for treating different practices in a different way. This generates further confusion as it is not clear which test would apply to novel infringements. On the other hand, commentators have criticized the case law for being too formalistic and not taking into account the effects of behaviour. The publication by the Commission of Guidance on Article 102 in 2009 has not contributed to solving the problem. In striking contrast with other sets of guidelines, the Guidance on Article 102 is limited to explaining how the Commission will set its enforcement priorities.6 It is, therefore, not guidance on the substantive tests for abuse and applies only as a matter of administrative discretion.

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