Introduction

The second pillar of European competition law focuses – in principle – on the behaviour of a single undertaking. Article 102 does not require the collusive behaviour of two or more economic actors. It can sanction the unilateral behaviour of a dominant undertaking where this behaviour amounts to a “market abuse”. The provision states:

The provision encapsulates a number of fundamental choices with regard to the European economic constitution. For by concentrating on a “dominant position within the internal market,” Article 102 goes beyond penalizing pure monopolies. In that respect it is wider than its American counterpart. But by insisting on market abuse, it is narrower than the American prohibition. For unlike the latter, Article 102 will not directly outlaw distorted market structures. Dominance is not itself prohibited – only the abuse of a dominant position. Once this abuse is however established it appears to be prohibited as such. For Article 102 has – unlike Article 101 – no “third paragraph” exempting abusive behaviour on the ground of its pro-competitive effects. However, like Article 101, the prohibition of market abuse will only apply where the abusive behaviour “may affect trade between Member States”. This jurisdictional condition indeed defines the scope of all European competition law.