Exploitative Abuses: Recent Trends and Comparative Perspectives

Abstract

The chapter discusses the ‘revival’ of exploitative abuses in Europe. In particular, the chapter analyses the legal test and recent enforcement trends concerning excessive and discriminatory pricing, as well as unfair trading conditions under Art. 102 TFEU. The chapter concludes that the revival of exploitative abuses is taking place in specific industries (i.e. energy, pharmaceutical, and digital markets) and only in relation to excessive prices and unfair trading conditions. By contrast, cases sanctioning discriminatory pricing remain extremely rare. In digital markets, the revival of exploitative abuses has mostly concerned unfair trading conditions. The peculiarities of digital markets (i.e. close to zero marginal costs, winner takes all dynamics, and zero-price markets) make it hard for a competition agency to assess an excessive pricing case under the United Brands test and the benchmarking approach. Finally, sector regulation may solve the market failures causing exploitative abuses, but thus making competition law enforcement ‘redundant’.