Edited by Pier L. Parcu, Giorgio Monti and Marco Botta
Chapter 3: Article 102: sources of interpretation
It is common for scholars to look to judgments of the EU courts and to soft law to determine the scope of Article 102 TFEU. National courts of Member States in the EU also make extensive reference to the case law of the European courts in their judgments, as successive reviews confirm. In this chapter, a set of possible sources that allow us to see the use made of Article 102 is explored, and how far they may also be examined as sources of understanding Article 102. First, commitment decisions are examined: while these are not fully reasoned they contain sufficient information to teach us about theories of harm to allow us to say more about the possible reach of Article 102. Second, the chapter assesses the soft law adopted by the EU Commission, in particular the Guidance Paper on Article 102. It is suggested that the Guidance Paper is not irrelevant as a source of law, and that it may serve as a helpful restatement of certain aspects of the case law, but that certain passages should not be treated as sources of law. The key argument developed in the chapter is that national courts should interpret Article 102 in a dynamic manner. This is exemplified by the approach of the Court of Justice of the European Union (CJEU) and also by the approach taken by the courts in England and Wales. The case law from this jurisdiction also shows the benefits of what is termed here ‘critical deference’ to the judgments of the European courts. This approach affords the optimal method for developing EU competition law because it empowers courts at all levels to develop the law incrementally. Keywords: commitment decisions; Guidance Paper on Article 102; courts of England and Wales; CJEU
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