Op-Ed: “The Missing Link in Article 102 TFEU: Defining the Boundaries of Competition Law Enforcement” by David Pérez de Lamo
I. The Ever-Expanding Responsibility of Dominant Firms
Article 102 TFEU prohibits ‘[a]ny abuse […] of a dominant position’. Therefore, one might logically think that Article 102 TFEU requires a causal link between an undertaking’s dominant position and the alleged abusive conduct (the ‘causal link question’). Yet, this appears not to be the case when the case law of the Court of Justice of the European Union (CJEU) is examined, as will be done infra.
The causal link question might sound trivial at first sight. However, the absence of a causal link, paired with an open-ended notion of abuse, has enabled (and will further allow) competition authorities to creep unrestrainedly into adjacent legal domains via Article 102 TFEU,