Hidden efficiencies: the relevance Of business justifications in abuse Of dominance cases

friederiszick, hansw. ; gratz, linda;

This article assesses the relevance of efficiencies and other justifications in recent
Article 102 TFEU cases. Based on a review of all EU decisions and openings
between 2009 and mid-2013, we find that procompetitive justifications still play
an unsatisfactory role in the EU Commission�s evaluations, except in IT-related
abuse cases. This stands in contrast to the policy goals expressed during the
reform phase (from 2005 to 2009), the Guidance Paper, and the increasing relevance
of efficiency considerations in merger proceedings. We argue that this development
is due to a malfunctioning of the balancing test�that is, the weighting
of pro- and anticompetitive effects, as pro- and anticompetitive effects are often
non-separable and non-monotone in Article 102 TFEU cases. Policy options are
discussed, and it is argued that a fully integrated analysis is the only policy option
fully addressing the problem