The Law on Abuses of Dominance and the System of Judicial Remedies

Abstract

This article examines the extent to which the imperfect nature of the EU system of judicial remedies can explain the peculiar evolution of the EU law on abuses of dominance. A comprehensive analysis of competition law judgments since the 1960s suggests that the procedural avenue through which a case reaches the General Court and the European Court of Justice has a significant impact on the outcome of individual cases and, over time, on the very substance of Treaty provisions. It is submitted that some of the distinct features of the case law on Article 102 TFEU – lack of consistency, legal uncertainty, judicial restraint – are the consequence of the fact that the scope of the notion of abuse has been defined in the context of annulment actions against Commission decisions, as opposed to preliminary references submitted by national courts in accordance with Article 267 TFEU. This conclusion is tested against the evolution of Article 101 TFEU and Article 2 of the successive Merger Regulations.