Unfair Trading Conditions—the Revival of a Dormant Concept of EU Competition Law

ABSTRACT Recent years have seen European competition agencies intervene to an unprecedented degree against allegedly unfair trading practices by dominant undertakings on the basis of Article 102(a) TFEU. In view of the almost complete lack of legal precedent, this contribution aims to establish and critically analyse the legal tests used by these agencies for establishing the unfair nature of the conduct. It concludes that the agencies’ approaches, while different at first sight, can be understood as applying a general proportionality test. This is a tried and tested principle of EU competition law and intellectually compatible with the test for excessive pricing. In the interest of legal certainty, effectiveness and uniform interpretation at the national level, however, the Commission should issue interpretative guidance on the concept. Other laws that define unfair conduct more precisely may play a meaningful role in this process. The contribution concludes that the sudden (re)discovery of the concept is most likely a consequence of several factors, including the willingness of competition agencies to fill enforcement voids in other areas of law, the complexity of contemporary exclusionary abuse analyses, and an increased willingness to reintegrate policy objectives beyond a narrowly defined consumer welfare aim.