The Roles of Innovation in Competition Law Analysis
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The Roles of Innovation in Competition Law Analysis

Edited by Paul Nihoul and Pieter Van Cleynenbreugel

Rapid technological innovations have challenged the conventional application of antitrust and competition law across the globe. Acknowledging these challenges, this original work analyses the roles of innovation in competition law analysis and reflects on how competition and antitrust law can be refined and tailored to innovation.
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Chapter 11: The abuse of rights in EU competition law and beyond

Mariateresa Maggiolino and Maria Lillà Montagnani

Abstract

This chapter examines how the abuse of rights fits within the twofold framework of EU competition law and Union law to investigate the actual scope of this long-standing general principle of law. To this end, the chapter begins by analyzing the EU case law to identify the conditions under which a firm abuses its rights and violates EU competition law. Then, taking inspiration from the US antitrust law, the chapter maintains not only that the case of the abuse of rights should be distinguished from the case of the conflict of laws, but also that the psychological inquiry into the intent motivating abusive business practices should be kept separate from the objective examination of the reasons explaining and justifying the abusive behaviors. The chapter discusses the EU case law that, moving from the analysis of many and diverse legal provisions, has over the years shaped the principle of the abuse of rights that is now applied in the EU. In particular, the chapter elicits the problems connected to the subjective and objective elements of the actual definition of the abuse of rights and concludes by comparing the tests adopted in EU competition law and Union law.

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