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Part III Tests of Abuse, 6 The Tests of Intent

From: The Foundations of European Union Competition Law: The Objective and Principles of Article 102

Renato Nazzini

From: Oxford Competition Law (http://oxcat.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 13 June 2021

Abuse of dominant position

This chapter focuses on the test of intent under Article 102. Intent plays an important role in determining whether conduct runs counter to the purpose of Article 102. Abuse, however, remains an objective concept because evidence of subjective intent is never sufficient, by itself, to establish a prima facie case of abuse. The conduct must be capable in its market context of causing competitive harm. Furthermore, intent can be inferred from purely objective factors so that direct proof of subjective intent is not necessary. With these important qualifications, intent plays three roles in shaping the abuse tests under Article 102. First, intent constitutes the centre of gravity of the naked abuse test. Second, intent complements the test of foreclosure of as efficient competitors in predation to guard against a systematic risk of false convictions and over-deterrence. Third, intent guards against the risk of systematic false acquittals and under-deterrence in tying.

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