'In targeting both exploitative and anti-competitive abuses, Article 102 TFEU makes a significant contribution to the achievement of the aims of European Union competition law.'

In the light of this statement and with reference to the interpretation of 'abuse' by the Court of Justice, critically discuss the extent to which Article 102 TFEU has succeeded in achieving the aims of EU competition law.

This question requires you to consider the general aims of EU competition law, as well as to discuss the concept of 'abuse', as interpreted by the Court of Justice. A number of different answer structures would be acceptable, but your answer should broadly cover the following, with commentary and analysis of the cases referred to.

Identification of the scope of the question

• Aims of EU competition law: achieving the internal market, efficiency, protection of the consumer, protection of small and medium-sized undertakings.
• The three elements of Article 102, namely dominant position, abuse which may affect trade between Member States. The question focuses specifically on the concept of 'abuse'.
• Exploitative and anti-competitive abuses

Examples of abuse

• Examples of abuse in Article 102: unfair pricing/trading conditions; limit production, markets, technical development to detriment of consumers; discriminatory treatment; imposition of supplementary obligations not connected to the subject of contracts.

Interpretation and application of 'abuse' by the Court of Justice: analysis of the cases with reference to the aims of EU competition law

• Distinction between exploitative and anti-competitive abuses, with definition/explanation.
• Exploitative abuses, protection of the consumer:
• unfair pricing (eg United Brands);
• price discrimination (eg United Brands).
• Anti-competitive abuses:
• predatory pricing (eg AKZO, Tetra Pak) – protection of small and medium-sized undertakings;
• refusal to supply (eg Commercial Solvents, Hugin, Sealink, United Brands) – protection of small and medium-sized undertakings and achieving internal market;
• in all ofthe above cases, the promotion of efficiency and the internal market through increased and/or the general protection of EU-wide competition.
• Exploitative and anti-competitive abuses:
• target discounting (eg Michelin) – protection of the consumer;
• loyalty rebates(eg Hoffman-La Roche) – promotion of efficiency;
• tie-ins (eg Hoffman-La Roche, Hilti) – protecting the consumer, promotion of efficiency;
• import and export bans (eg Hilti) – achieving the internal market.
• Commission review of Article 102 – discussion paper of 2005 and Guidance of 2008– focus on exclusionary conduct that harms consumer – an effects-based approach – the debate continues.

Conclusion

The Court of Justice has addressed both forms of abuse and in doing so has furthered the aims of EU competition law. The Commission's developing approach suggests an increasingly effects-based regime, which focuses on the protection of the consumer.