The Role of Exploitation in Abuse under Article 82 EC

Abstract There is a distinction between exclusionary and exploitative abuse. An exploitative abuse directly harms customers whilst an exclusionary abuse may indirectly harm consumers. Whilst the EC Commission expresses the objective of Article 82 EC as enhancing consumer welfare, its review of the application of Article 82 EC and its 2008 Guidance on enforcement priorities is limited to exclusionary abuses and excludes consideration of exploitative abuses. This chapter argues that exploitation—direct harm to the customer—is a necessary element of an Article 82 EC infringement. However, mere exploitation does not demonstrate harm to competition and without the latter exploitation should not be prohibited by Article 82 EC. It thus advocates a fusion of the exclusionary and exploitative analysis.