In the Gray Area Between Unfair and Prohibited : Exploitative Abuse of Dominant Position under article 102 (a) TFEU, Especially in the Digital Era

This thesis examines exploitative abuse of dominant position under article 102 a) TFEU, focusing on excessive pricing and unfair contract terms. EU competition law has traditionally been applied to exclusionary practices, where the harm to consumers is indirect stemming from reduced competition. By contrast, exploitative abuse which involve direct harm to consumers or non-competing costumers, has received limited attention in both case law and enforcement. Considering growing market concentration and the dominance of digital platforms, interest in exploitative abuse is increasing. Digital platforms raise concerns due to structural features, such as network effects, the significance of data and high entry barriers. These factors contribute to lock-in users and create a fragile ground for exploitative practices, especially through one-sided contract terms against end users and business users. Digital platforms have given rise to a new regulation, Digital Markets Act (DMA), which places special requirements on certain large digital platforms, so-called gatekeepers. However, article 102 TFEU remains highly relevant, especially regarding new types of abuses and platforms that fall outside the scope of the DMA. By analyzing relevant case law, this thesis examines what constitutes excessive pricing and unfair contract terms according to The Court of Justice of the European Union (CJEU) and the European Commission. Excessive pricing is primarily assessed by comparing the economic value of the product to competing products. By contrast, unfair contract terms are typically identified when it’s not necessary or unproportional in relation to their intended purpose. The study also addresses the legal uncertainty in the assessment of exploitative abuse and presents a screening test developed in legal doctrine to identify particularly problematic cases. The purpose of the test is to minimize the risk of over-enforcement and provide clearer guidance for enforcement bodies. Further, the study reviews when national competition authorities have applied Article 102 a) TFEU to digital platforms, which is mainly when business users’ choices have been limited. Through a comparative analysis of recent case law from CJEU and the European Commission involving Meta and Apple, the thesis identifies exploitative and exclusionary effects in all three cases. It argues that the proposed screening test can serve as a useful tool to determine when the exploitative effect of a dominant firm’s behavior warrant enforcement action.