Exploitative Abuse in Article 82EC: Back to Basics?

For the last few years, the EC Commission has been reviewing its application of Article 82EC which prohibits the abuse of a dominant position on the Common Market. The review has resulted in a Communication from the EC Commission which for the first time sets out its enforcement priorities under Article 82EC. The review had been limited to the so-called 'exclusionary' abuses and excluded 'exploitative' abuses; the enforcement priorities of the EC Commission set out in the Guidance (2008) are also limited to 'exclusionary' abuses. This is, however, odd since the EC Commission expresses the objective of Article 82EC as enhancing consumer welfare: exploitative abuses can directly harm consumers unlike exclusionary abuses which can only indirectly harm consumers as the result of exclusion of competitors. This paper questions whether and under which circumstances exploitation can and/or should be found 'abusive'. It argues that 'exploitative' abuse can and should be used as the test of anticompetitive effects on the market under an effects-based approach and thus conduct should only be found abusive if it is 'exploitative'. Similarly, mere exploitation does not demonstrate harm to competition and without the latter, exploitation on its own should not be found abusive.