Part I Normative Foundations, 3 The Design of the Optimal Abuse Tests

Subject(s):

Defining abuse of dominant position — Determining abuse of dominant position — Exclusionary abuse — Exploitative abuse — Abuse of dominant position, affecting trade

This chapter examines the possible abuse tests applicable to exclusionary, exploitative, and discriminatory abuses. No single test for abuse of dominance is conceivable in theory and as a matter of enforcement policy. This does not mean, however, that the law is left without clear guiding principles so that competition law is in reality a set of ad hoc solutions perhaps suited to the facts of individual cases but devoid of any underpinning rationale. Exclusionary abuses may be assessed under tests of intent, the as efficient competitor test, and the consumer harm test. Meanwhile, exploitative abuses are clearly assessed under the consumer harm test. Beyond exclusionary and exploitative conduct, there may be a case for prohibiting discrimination on intermediate markets that distorts the competitive relationship between downstream buyers of the dominant firm. The hallmark of abusive discrimination is the impairment of the ability to compete of firms.