COMPETITION ON THE MERITS—A NEW ROLE FOR AN OLD CONCEPT FOR THE ANALYSIS OF EXCLUSIONARY ABUSE UNDER ARTICLE 102 TFEU

ABSTRACT The concept of ‘competition on the merits’ has appeared recurrently in prominent Article 102 TFEU cases such as Intel, Google Shopping, SEN, Unilever, and Super League, but is used in a vague and often unclear way. The goal of this paper is to review this ‘old’ concept—whose protection is the goal of Article 102 TFEU—and make it operable for an analysis of exclusionary abuse cases. While it might seem difficult to apply this concept in specific cases, it can provide the backbone of a ‘sliding scale’ that represents a matrix where certain criteria indicate that a behaviour is on the merits or not. The closer the conduct moves into one or the other direction, the less or more important an effects analysis becomes before competition law can intervene. If there is a strong indication that a conduct is non-meritorious, enforcement can rely on presumptions and there is less need to prove anti-competitive effects (and vice versa). This would combine the benefits of a form-based approach with the necessity of an effects analysis. This novel approach suggested can lead to a more effective and efficient enforcement and should be emphasized more in the new Guidelines on Article 102 TFEU.