Acceso usuarios
Carsten König
Proponents of a “more economic approach” (MEA) to EU competition law criticise the case law on abuse of dominance as overly form-based—i.e. as being built on categorisations rather than case-specific assessments of competitive effects. While the Commission has largely accepted this criticism, the EU Courts are generally said to be sceptical about effectsbased assessments of art.102 TFEU cases. This could pose a problem for the Commission’s recent decision in Google Search, which primarily relies on effects, not form. However, it is argued here that the Courts’ reluctance in this matter is mainly driven by worries about the effective enforcement of competition law. Thus, although the Courts have occasionally rejected requiring the Commission to prove effects in addition to the elements of a form-based legal test, it cannot be assumed that they are equally sceptical about relying on effects where such tests are unavailable. In fact, the Courts’ treatment of novel abuses, in particular, shows that they do not consider form a defining element of abuse. Thus, it is unlikely that the Courts will find fault with an alleged abuse’s lack of form if they are convinced that the practice in question is anti-competitive.
