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引用次数: 0
摘要
本文探讨了《欧盟运作条约》第 102 条判例法中就事论事的竞争概念的含义和当代意义。文章还探讨了滥用的认定是否以某一行为 "不正常 "或构成 "不法行为 "为前提。分析发现了旧判例法与最新判例法之间的摩擦。这种摩擦在 Servizio Elettrico Nazionale 案中暴露无遗。诸如霍夫曼-拉罗氏(Hoffmann-La Roche)案这样的开创性判决引入了 "就事论事 "的竞争概念,其基础是可以事先抽象地区分合法与非法行为。在此背景下,本文提供了一个调和新旧判例法的结构,并表明在《欧盟运作条约》第 102 条中有根据是非曲直进行竞争的一席之地。根据是非曲直进行竞争、《欧盟运作条约》第 102 条、非法行为、滥用支配地位
This article examines the meaning and contemporary relevance of the notion of competition on the merits in Article 102 TFEU case law. It also considers whether a finding of abuse presupposes that a practice is “abnormal” or amounts to a “wrongful act”. The analysis identifies friction between the old and the most recent case law. This friction was exposed in Servizio Elettrico Nazionale. Seminal rulings such as Hoffmann-La Roche, where the notion of competition on the merits was introduced, are grounded on the assumption that it is possible to distinguish, ex ante and in the abstract, between lawful and unlawful conduct. The case law that followed moved away from these ideas and clarified that whether or not a practice amounts to an abuse is typically a context-dependent inquiry.Against this background, the article provides a structure that reconciles the old and the newstrands of case law and shows that there is a place for competition on the merits within Article 102TFEU.
Competition on the merits, Article 102 TFEU, unlawful conduct, abuse of dominant position
期刊介绍:
The Common Market Law Review has provided a forum for the keenest legal minds in the fields for more than 40 years. Because of the international composition of its Editorial Board, and in view of the fact that it is able to attract contributions from all over Europe, and from the United States, the Review is able to adopt a unique approach to capitilize Community issues. Each issue contains articles dealing with matters of current interest; the authoritative treatment given to each topic ensures lasting juridical value. This pre-eminent journal brings you detailed, in-depth examination of the most pressing and far-reaching issues on Community Law.