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A Long Way from Formalism: Has Price Abuse Law in the European Union Come of Age?

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EU law has moved decisively away from formalism and towards a more unified theory of pricing abuse underpinned by effects analysis. This article provides a holistic analysis of the development in EU price abuse law, considering several decades of judgments in the European Union. Prior to the Court of Justice’s judgments in Intel and MEO, EU law on abuse of dominance had a well-earned reputation for basing assumptions about the effect of pricing conduct on form-based categorisations. Although the Intel and MEO judgments are ground-breaking in other respects, this article demonstrates how the Court of Justice has been developing an effects-based analysis since at least 2010. Concepts developed in judgments about predatory pricing and margin squeeze have been adopted in judgments about price discrimination, and finally, flowed into judgments about loyalty rebates. Steered by two interventions of the Court of Justice’s Grand Chamber, there has now been a clear determination by the Court to modernize the EU competition law rules that apply to the pricing conduct of dominant firms.

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