Monday, July 26, 2021
This chapter considers the boundaries of the notion of abuse of dominance. It shows, first, that it is not possible to distinguish between inherently ‘improper’ and valid expressions of competition on the merits. Most practices can be plausibly explained on pro-competitive grounds and do not necessarily or invariably lead to anticompetitive effects. It explains, second, that the quest for an all-encompassing legal test has proved futile. Third, the chapter teases out the constituent elements of the notion of abuse and defines the fundamental criteria on the basis of which the main categories of potentially abusive conduct (such as tying, exclusive dealing or refusal to deal) can be distinguished. This exercise is useful to identify the tensions that arise in the case law and to make sense of some of the ongoing controversies surrounding the appropriate categorisation of practices (concerning, in particular, the appropriate treatment of product design and business models).