The Article 102 of the Treaty on the Functioning of the European Union (TFEU) prohibits „any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it...in so far as it may affect trade between Member States“. Such formulation implies that only the abuse is subject to prohibition, while acquiring or holding of a dominant position is in itself not prohibited under Article 102 TFEU (see the judgement of the European Court of Justice (ECJ) in Michelin case).
Although the Article 102 does not offer a definition of abuse, it sets examples as to what kind of behaviour may be considered as abusive. Therefore, the abuse may particularly consist in: „a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions; b)“limiting production, markets or technical development to the prejudice of consumers; c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts“.
From the theoretical point of view it is possible to distinguish between the concept of exploitative abuse and exclusionary abuse. The main difference is that exploitative abuse results in a direct loss of consumer welfare (such as in the case of excessive pricing), while the exclusionary abuse involves strategic behaviour directed against actual or potential competitors, thus indirectly causing a loss in consumer welfare. As the definition of abuse is not given by the TFEU, the same was developed through the case law of the ECJ. The concept of abuse was first defined in the case Hoffmann-La Roche.According to the judgement of the ECJ, the concept of abuse is “an objective concept relating to the behaviour of an undertaking in a dominant position which is such as to influence the structure of a market where, as a result of the very presence of the undertaking in question, the degree of competition is weakened and which, through recourse to methods different from those which condition normal competition in products or services on the basis of the transactions of commercial operators, has the effect of hindering the maintenance of the degree of competition still existing in the market or the growth of that competition”. Alternative definition originates from the AKZO case.According to this definition the “abuse is anything that is not legitimate competition or “competition on the merits”.The further interpretation of the concept of abuse derives from the Michelin I case, where the ECJ determined a special responsibility of the undertaking not to abuse its position, whereby abuse stands for an impairment of genuine undistorted competition on the common market. More recent definition of abuse is given by the ECJ in the Post Danmark case. Here the ECJ stated that the abuse is to be considered as “recourse to methods different from those governing normal competition on the basis of the performance of commercial operators” with the “effect (to the detriment of consumers) of hindering the maintenance of the degree of competition existing in the market or the growth of that competition”.
