- Elgar original reference
Edited by Ioannis Lianos and Damien Geradin
Chapter 11: Abuse of dominance: exclusionary non-pricing abuses
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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