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The Concept of Abuse in EU Competition Law

The Concept of Abuse in EU Competition Law Law and Economic Approaches

Author: Pinar Akman
Publisher: Hart Publishing
ISBN: 9781849469722

Published In: June 2015
Format: Paperback
Jurisdiction: European Union ? Disclaimer:
Countri(es) stated herein are used as reference only
Hardback Edition ISBN: 9781849461092

List Price: HKD 454.87

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The objective(s) of Article 102 TFEU, the EU provision prohibiting the abuse of a dominant position, have not been settled to date. Using law and economic approaches, this book inquires into the possible objectives of Article 102TFEU and proposes a modern approach to interpreting 'abuse'.

This aim is achieved by placing the main focus of the analysis on 'exploitative abuse'. Although it is indisputable that Article 102TFEU prohibits 'exploitation', there is neither a comprehensive study of 'exploitative abuse' in the literature nor any guidance in the Commission's policy documents.

However, a reform of the approach to Article 102TFEU cannot be complete without answering the question of how to deal with exploitative abuses, such as excessive pricing, discrimination, etc.

The working hypothesis of the book is that the separation of exploitative abuse from exclusionary abuse is artificial and unsound. Hence, this book aims to further the current understanding of 'abuse' and to establish an economically-sound test of infringement which can inform policy and law in this area.

Starting with an examination of the roots of Article 102TFEU and of the historical context of the adoption of the Treaty, this book analyses the case law, policy and literature on exploitative abuses and, where relevant, exclusionary abuses.

The book investigates potential welfarist and non-welfarist objectives, such as fairness and (consumer) welfare, as well as the potential conflict between such objectives. Finally, the book critically assesses the Commission's modernisation of Article 102TFEU and proposes a reformed approach to 'abuse' which fuses 'exploitative' with 'exclusionary' abuse.

PART I THEORETICAL AND HISTORICAL FOUNDATIONS

WELFARE AND OBJECTIVES OF COMPETITION LAW AND POLICY

THE HISTORICAL ROOTS OF ARTICLE 102 TFEU

PART II TWO POTENTIAL OBJECTIVES: 'WELFARE' AND 'FAIRNESS'

WELFARE IN ARTICLE 102 TFEU

'FAIRNESS' IN ARTICLE 102 TFEU

PART III CONFLICTING OBJECTIVES IN PRACTICE: TWO CASE STUDIES

A CASE STUDY ON 'FAIRNESS' VERSUS 'WELFARE': 'UNFAIR PRICING' AS AN ABUSE

A CASE STUDY ON 'FAIRNESS' VERSUS 'WELFARE': 'DISCRIMINATION' AS AN ABUSE :

PART IV MODERNISING THE APPROACH TO 'ABUSE'

THE 'REFORMED' APPROACH TO 'ABUSE'

A NEW APPROACH TO 'ABUSE' CONCLUSION

Dr Pinar Akman is a Senior Lecturer in Law at the UEA Law School and a Faculty Member of the ESRC Centre for Competition Policy, University of East Anglia.

Pinar Akman's book stands out as one of the most original contributions to the field published in recent years.

There is...every reason to welcome the novel perspectives and methodological approaches explored by the author, one of the most promising legal scholars in the field and one who will undoubtedly deliver works of a similar high quality in the future.
Pablo Ibáñez Colomo
The Modern Law Review
Vol 76, No 2

The research study is well written, critical, very interesting, and controversial, much of the analysis is not widely known.

The book will be of interest to those concerned with the reform of an important article in the competition rules and the 120 competition authorities around the world, most of which were created only recently.
Valentine Korah
World Competition: Law and Economics Review
December 2012

...this book is a valuable contribution to the existing literature on Article 102 and the culmination of the author's years of research in the area of abuse of dominance. Her approach is a plausible alternative to the current approach

Even though the book is intended to be a research monograph rather than a textbook, it is easy to read and the author is successful in explaining complex issues and concepts in a simple manner. The book is, therefore, highly recommended to everyone.
Ahmet Faith Özkan
European Competition Journal
August 2012

This is an important and brave book. Its genesis is a doctoral thesis awarded by the University of East Anglia, yet another major contribution from the ESRC Centre for Competition Policy located at UEA. It has all the strengths and none of the weaknesses of a book derived from such research.

Dr Akman has read widely in several languages and a particular strength of the book is its willingness to place “competition law” in its theoretical and historical content and fully (100 pages) derive from archival research into the genesis of Article 102 and the latest economics.

She is not afraid to grapple with some of the complexities, and inconsistencies, of welfare economics and goes well beyond the usual (it must be said, superficial) treatment found in many other texts. A further strength lies in her very careful analysis of the key cases involving abuse.
Tom Sharpe
Antitrust & Competition Policy Blog
September 21, 2012