True Unicorns? Escaping the Article 102 TFEU Prohibition

Abstract

This paper examines the scope of exonerations under Article 102 TFEU by analysing the Court of Justice’s case law on abuse of dominance since the 1960s and systematizing the applicable legal tests. We first investigate how those tests can be reconciled with an effects-based approach, which entails a full analysis of efficiencies. We then assess whether exonerations should be viewed as substantive grounds in their own right or as procedural rights of defense available to dominant undertakings. Specifically, we ask whether the rights of defense of the undertaking create a (new) substantive exoneration ground or remain a classical procedural right of incriminated dominant companies. This reflection is timely in the light of the shift in case law towards a ‘more economic’ approach and the Commission’s new draft guidelines on exclusionary abuses, which reintroduce presumptions and suggest a more legalistic type of reasoning. These developments prompt the need for a coherent and systematic re-examination of the availability of exonerations under Article 102.