There are three main approaches to analyzing abuse of dominance under Article 102 - per se rule, effects analysis, and de minimis doctrine. The per se rule presumes conduct with anti-competitive object has an effect, while effects analysis assesses consumer impact. De minimis doctrine warns of matters too immaterial for court consideration. The document also outlines types of abuse like exploitative and exclusionary, and defenses like objective necessity and efficiencies. It provides an overview of different jurisprudence on analyzing abuse of dominance claims.

1. Different approaches under Article 102
Per se rule: Conduct that has an anti-competitive object is presumed as having an anti-competitive
effect. An important question is, therefore, whether this equals as per se abuse. In the case of Intel, the
General Court held that the conditional rebates on a customer in which requirements are obtained from a
dominant firm are per se abuses.However, in the case of GlaxosmithKline, the General Advocate of the
opinion that it is not possible to have a per se rule since it does not conform well with Article 102 TFEU.
Effects analysis: An effect analysis focuses on assessing outcome rather than practices, assessing
legitimacy by reference to consumer impact, preference of rule of reason over per se. In the case of
Teliasonera, the court laid down the principle of effects analysis, that while determining the anti-
competitive behaviour, the effect of the conduct is to be determined rather than the degree of dominance
being.
De minimis doctrine: It warns the parties the parties should not come to the court with matters that are
too immaterial for the court to consider. There have been various case laws that have dealt with the issue
of de minimis doctrine. In the case of Franz Völk, the court acknowledged the de minimis rule and held
that agreements having ‘insignificant effects on the market’ are not covered under Article 101 TFEU.
Considering this, it can be inferred that this rule also falls out of Article 102. However, in the case of Post
Danmark, the court said that it is not justified to set a de minimis threshold in the context of Article 102.

2. Abuse
Introduction: Any conduct by and undertaking that is not based on merits and impedes effective
competition would qualify as abuse.
Three preliminary points:
1. Special Responsibility: The dominant undertaking has a ‘special responsibility’ not to undermine
undistorted competition in the common market. The dominant undertaking should not engage in
such pricing practices that makes it earn more profit than it would have earned if there were effective
competition.
2. Non exhaustive list: Four types of abuses given in Article 102(a) to (d) are non exhaustive.
3. Avoiding false positives and false negatives: These are aimed at promoting accuracy while
determining abuse.
● Avoiding false positives: this says that the abuse should not be determined in a way that it
restricts the dominant undertakings from competing effectively for the benefit of consumers, even if it
harms the competitors.
● Avoiding false negatives: this says that the abuse should allow dominant undertakings to involve
in anti-competitive behaviour that may harm consumers.

3. Jurisprudence on meaning of abuse:
Hoffmann-La Roche v Commission: In this case, the court said that the abuse is an objective concept
where an undertaking engages in such conduct to influence the market structure, due to which the degree
of competition is weakened and the growth of the competition is affected, by using methods that deviate
from normal.
Competition on the merits: Conduct which is not based on merits is abusive conduct, and the
undertaking is prohibited to involve in such practices. Commission’s guidance gives an example of merits
as “lower prices, better quality and wider choices of new goods and services.” A competition that is not
based on merits is likely to cause harm to customers.

4. Types of abuse
1. Exploitative abuse: These abuses are concerned with exploiting the consumers directly by
charging excess prices or other unfair trading conditions. The dominant firms may also use their
market power by extracting rents higher than that are normally achievable.
2. Exclusionary abuse: Exclusionary abuses are those abuses where the conduct of dominant
undertakings prevents competitors from entering into the market, or limits profiting of the existing
competitors which as a result harms the customers.
Causation
Following elements need to be there to cause exclusionary conduct within Article 102:
● The conduct of the dominant undertaking must hamper or eliminate rivals’ access to supplies or
the market.
● The abusive conduct of the undertaking must cause the anti-competitive effects.
● The anti-competitive effects must be reasonably likely.
● The anti-competitive effects must be significant in creating or reinforcing market power.

5. Foreclosure: Market foreclosure is conducted by a dominant undertaking which may lead to anti-
competitive effects. Conduct that may cause actual or potential competitors to lose profitability in the
market, likely to hinder the existing competition in the market or inhibit the growth of such competition is
said to have a disclosure effect, leading to an increase in prices.
Foreclosure can be of two types: Horizontal or Vertical foreclosure.
Horizontal foreclosure consists of non-price based exclusions like single branding and tying, and price
based exclusions like mixed bundling, loyalty rebates, and predatory pricing. Here the dominant
company attempts to exclude, or marginalize its rivals by preventing the customers to access their
market.
Vertical foreclosure consists of non-price based exclusions like refusal to supply, and price based
exclusions like margin squeeze.
3. Single market abuse: These abuses are exercised by the dominant undertakings to prevent the
flow of goods across member states. It is aimed at maintaining dominance in a particular member state
by barring competitors from another state.

6. Defences
Objective necessity: The dominant undertaking needs to show that its conduct was necessary based
on external factors such as health or safety concern and without such conduct, the concerned product
cannot be produced.
Efficiencies: The undertaking need to show that the following conditions are fulfilled for efficiency
defence:
● That the conduct would lead to efficiencies.
● That there is no other alternative to achieve the claimed efficiencies besides such conduct.
● That their conduct has resulted in less harm to the consumers than they might otherwise have and
the efficiencies brought outweighed the likely negative effects of the competition.
● That effective competition is not eliminated by such conduct.
Abuse relating to proprietary rights: This is used as a defence where a dominant undertaking
refuses access to its property or proprietary rights and may also involve refusing access to its intellectual
property or physical property. A dominant firm may use this defence if it can show that the restriction was
necessary for protection of competition.