Fairness, competition on the merits and article 102

Alberto Pera

European Competition Journal, 2022, vol. 18, issue 2, 229-248

Abstract: This paper examines the role and meaning of the concept of “fairness” in the application of European competition law, and in particular of Art, 102 of TFEU, It argues that, with its emphasis on firms competing on the bases of their superior performance, the paradigm of competition on the merits may well be considered a reference for the definition of whether a conduct by a dominant undertaking may be considered “fair”. The paper finds support for this in the case law of the European Courts and the Commission, as well as in the legal constructions characterizing EU jurisprudence, such as the “special responsibility” of a dominant firm and the “essential facility” doctrine. This view of fairness is also at the bases of the application of art. 102 through the different issues posed by the development of data based digital economy; the paper also argues that such a view helps clarifying the criteria to be used when applying the principles set by the European Courts with respect to the application of art. 102 to excessive prices.

Date: 2022
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DOI: 10.1080/17441056.2022.2056347

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