Seitenhistorie

Article 102 TFEU (ex 82 EC) regulates the reaction of a dominant firm to the strategies rivals practice or the tactics aiming to exclude competitors in order to maintain or widen its market power. These two types of abuse, the so called “exploitative abuse” and “exclusionary abuse” respectively- constituents of the “abuse of dominant position” concept.

Anticompetitive conduct ultimately targets exploitation of market power. Under the light of it, business employ exclusionary practices as a first step in order to further increase their rents upon a widen market power. Consequently, when a firm raises prices, it means that a successful exploitative strategy accomplished and the firm exploiting the fruits of its dominance. In such cases, regulation introduced by 102 TFEU makes the dominant firm perform as if it were in a competitive market. In terms of exploitative abuse article 102 TFEU provides restrictions of excessive pricing. An overrated price may be considered as an “exploitative abuse” when, for example, a dominant firm exploits directly its market power. The customer who receives this price could be the final user of the product/service or undertakings competing to a different market level. [1]

Competition authorities face a wide range of difficulties identifying output reduction and price increase evidenced throughout several cases.[2] Even the ECJ has not yet reached a clear resolution upon this parameter. In details, the Court introduced the term of “economic value of the product” which is merely calculated by comparing the cost of production to the selling price. According to this concept, whether a price is inside the framework of the “economic value of the product” or not is considered either sensible or excessive. The decision of the Court, however, is not sufficiently justified as even non- dominant firms are capable of charging over the marginal cost and still be efficient. Later on, in order to draw the boarding line, the Court suggested that a reliable criterion for excessive pricing is the selling price of the product in other Member States. [3] Nevertheless the complexity remained, thus no sufficient practice in defining and regulating the excessive pricing introduced. [4]

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