In this short comment, Professors Ronny Gjendemsjø and Tore Lunde from the University of Bergen and the Bergen Center for Competition Law and Economics (BECCLE) provide a feedback of the draft guidelines on exclusionary abuses under Article 102 TFEU, focusing on the concept of “competition on the merits” as a separate and necessary condition for establishing an abuse of a dominant position. They argue that this requirement is not supported by the case law of the Court of Justice of the European Union (CJEU) and could impose unnecessary burdens on competition authorities. Through examination of relevant case law and the operational challenges of distinguishing between competition on the merits and exclusionary effects, the authors recommend that the final guidelines should not treat departure from competition on the merits as a separate condition.
Download the full article here: Competition on the merits as a separate condition for establishing an abuse of a dominant position