3.

The Dominant Position and the Concept of Abuse

a) The Definition of a Dominant Position

Article 102 TFEU does not condemn the mere possession of dominance, but is
directed at strategic actions carried out by a firm in a dominant position that
unlawfully exclude competition and therefore risk maintaining or strengthening
the dominant position.262 Thus, the law intervenes when undertakings are strong
enough to harm competition by unilateral, anti-competitive conduct. Unlike EU
competition law, whose definition of dominance is confirmed in its recent case
law, Romanian legislators have adopted the second element of the legal test in
a domestic regulation, defining dominance as a situation where an economic
agent is able, to a considerable extent, to behave independently of its actual and
potential competitors.263 Potential competitors are defined as economic agents
who are able to penetrate the relevant market with products from other
geographical areas, including imported products. Nevertheless, the capacity to
act independently relates to the parameters of competition, such as market prices,
output, innovation, variety, and quality of goods or services.
In practice, the CCs definition of dominance is similar to the definition given
in Hoffman-LaRoche: the ability of an undertaking to behave to a significant
degree independently from its competitors, customers and consumers.264 Thus,
the CC did not refer to market dominance as related to a position of economic
strength that enables the accused undertaking to prevent effective competition
being maintained in the relevant market by affording it a discretionary power
to behave independently. As the regulation distinguishes actual and potential
competitors, it is surprising that the CCs decision did not mention under which
circumstances an undertaking could abuse its position by preventing effective
competition being maintained in that market.
By virtue of its recent case law, the EU definition of dominance is based upon
two key elements: the ability of a firm enjoying a position of economic strength
to prevent effective competition and the power to behave to an appreciable
extent independently of all the market participants, namely, competitors,
262 ODonogue/Padilla, supra n 33, 5-6.
263 Article 2(3) Regulation for the Application of the Provisions of Articles 5 and 6 of the
Competition Law 21/1996 regarding anti-competitive practices, OJ 430/2004. See Whish,
Competition Law, Butterworths, 2005, 179; Case T-65/98, Van den Bergh Foods v Commission, 2003 ECR II 4653, para 154; Case T-340/03, France Tlcom, 2007 4 CMLR
21, 99.
264 CC, decision no. 23, Sasha Distribution v Heineken Romania, 25 June 2007, para 7; Case
C-85/76, Hoffmann-LaRoche, 1979 ECR 461, 3 CMLR 211, para 38.

82

customers and, ultimately, consumers.265 In the Guidance Paper on its

enforcement priorities, the Commission reiterated this definition of dominance,
but clarified that the understanding of independently relates to the degree of
competitive constraints exerted on the accused undertaking. Thus, the concept of
dominance requires that the accused undertaking enjoy a substantial market
power over a period of time, whereas periods shorter or longer than two years
may be taken into account depending upon the circumstances of each case.266
Similarly, under German competition law, market dominance exists where
there is no actual or potential competition, but it may also apply in the situation
where an undertaking holds a paramount market position in relation to all its
competitors.267 However, the German concept of dominance, whilst having a
clearly articulated definition of situations where dominance occurs, such as the
legal presumptions and the criteria for assessing dominance, provides a far more
precise setting of this concept.

b) A Comparative Understanding: An Objective v a Subjective Concept of

Abuse
Under German competition law, Section 19(1)s reference to an abusive
exploitation completes the general approach to market dominance by covering
the abuse of dominance. The latter, however, is generally used, and lacks any
precise definition of the word exploitation other than detailing a few particular
forms of anti-competitive practices under Section 19(4).268 Thus, under Section
20, the German concept of dominance applies a wider perspective of market
dominance, which also applies to non-dominant undertakings for both
prohibitions of discrimination and unfair hindrance and for mergers in Section
36(1).269 In comparison to the EU concept of dominance, the German concept is

265 Bishop/Walker, supra n 204, para 6(6). For the early definition of dominance, Case C27/76, United Brands, 1978 ECR 207, para 65, Case C-322/81, Michelin, 1983 ECR
3461, para 78.
266 Supra n 5, paras 10, 11.
267 R. Bechtold, EG-Kartellrecht, Beck, 2005, para 17.
268 See Langen/Bunte, supra n 58, para 87, where the abusive exploitation is advanced as a
division of two concepts, namely, exploitative abuse and impediment-abuse in the sense
of Article 102. The division is not workable as some practices may exploit customers and
exclude competitors at the same time.
269 Gtting, supra n 192, para 59. Gtting argued that the introduction of Section 19(1)s
general prohibition by the enactment of the Sixth Amendment to the ARC (ex Section
22(4) 1st sentence) aimed to harmonise the German abuse of dominance with that of ex
Article 86 EC (now Article 102 TFEU).

83

clearly articulated and emphasizes the particular consideration given to both

abuse of dominance and mergers.270
Under EU competition law, a special responsibility of dominant
undertakings not to abuse their dominant position has been revealed as the
underlying concept of abuse.271 Abuse may consist, inter alia, in having
recourse to methods different from those which condition normal competition
with the effect of hindering the maintenance of the degree of competition still
existing in the market or the growth of that competition272 or in not allowing
its conduct to impair undistorted competition273 within the internal market, as
the Guidance Paper suggests.274 This special responsibility may prevent those
undertakings from engaging in conduct that is otherwise permitted to nondominant undertakings.275
Waelbroeck is critical of the Commissions old practice.276 However, whilst
he argued correctly that in Hoffmann-LaRoches para 91 the concept of abuse is
an objective concept relating to the behaviour of an undertaking in a dominant
position which is such as to influence the structure of a market, there is no
further explanation of the additional recourse to methods different from those
which condition normal competition, which introduced the subjective concept
of other (unfair) methods of competition, and had the effect of hindering the
maintenance of the degree of competition still existing in the market or the
growth of that competition. This means that the effect of an anti-competitive
practice need not be shown for abuse based on an objective concept. In contrast,
270 Ibid, Gtting, paras 5-6.
271 For criticism that the undertakings special responsibility is regarded as somewhat
outdated, see Niels/Jenkins, Reform of Article 82, 26(2005)11 Eur.Comp.L.Rev., 605. In
contrast, the special responsibility requires an undertaking to protect its own commercial
interests and take reasonable steps to protect them, by using other methods of normal
competition in the sense of competition on the merits that results from an undertakings
good economic performance; see V. Mertikopoulou, DG Competitions Discussion
Paper on the Application of Article 82 of the EC Treaty to Exclusionary Abuses,
28(2007)4 Eur.Comp. L.Rev., 241; see, Art/Colomo, Judicial Review in Article 102, in:
Etro/Kokkoris (eds.) Competition Law and the Enforcement of Article 102, OUP, 2010,
who complain about the broad and vague definition of abuse and the lack of guidance
on the meaning of methods of competition.
272 Case C-85/76, Hoffmann-La Roche, 1979 ECR 461, paras 6 and 91; Case 322/81, Michelin I, 1983 ECR 3461, para 70; Case C-62/86, AKZO, 1991 ECR I-3359, para 69; Case
C-95/04, British Airways, 2007 ECR I-2332, 66; Case C-202/07 P, France Tlcom (formerly Wanadoo) v Commission, ECR I-02369, para 105.
273 Case 322/81, Michelin I, 1983 ECR 3461, para 10.
274 Supra n 5, para 1.
275 Van Bael/Bellis, Competition law of the European Community, Kluwer Law Int., 2005,
905.
276 D. Waelbroeck, The Assessment of Efficiencies under Article 102 and the Commissions
Guidance Paper, in: Etro/Kokkoris (eds.), OUP, 2010.

84

Waelbroeck considered that if a dominant undertaking competes on its merits,

its behaviour does not constitute an (objective) abuse of its dominant position,
because in Michelin Is para 70 the Court referred to methods different from
those governing normal competition based on a traders performance.
Therefore, if such methods (not yet considered as unfair competition) are based
on a trader, not on a dominant undertakings performance, it means that the
addressees of the law are any traders, including non-dominant undertakings.277
Article 102 refers only to dominant undertakings but it could also enforce a
subjective concept of abuse, and therefore, in Hoffmann-LaRoche, the court
needed to distinguish between the two concepts. Thus Waelbroeck concluded
that dominant undertakings are allowed to compete even aggressively and
thereby take away market shares from their competitors, provided this is the
result of greater efficiency; and not, for example, to sell below costs as a
predatory strategy to foreclose the market and where the dominant undertaking is
in a position to recoup its losses in the long-term to the detriment of consumers.
Relying on the subjective concept, competition is not on merits precisely
when a dominant undertaking competes aggressively or unfairly (according to
the criteria developed by unfair competition law). Therefore, even dominant
undertakings are not allowed to compete aggressively. In fact, Waelbroeck
acknowledged this additional abuse in the practice of intentional predation based
on a strategy to recoup losses, as effects of anti-competitive behaviour.278
In conclusion, this analytical approach proves that past court judgements were
correct in disregarding the effects of anti-competitive behaviour. Also,
Waelbroecks assessment of an efficiency-defence as a stricter approach in the
Guidance Paper does not recognise that this envisaged defence is limited only to
those cases that are most harmful to consumers and it does not replace the
classical objective justification requirement.
In Intel, the Commission referred to the same special responsibility not to
hinder effective and undistorted competition.279 In Microsoft, the General
Court (former CFI) held that a dominant undertaking had a special
responsibility, irrespective of the causes of that position, not to allow its conduct
to impair undistorted competition in the internal market280 and that Microsoft
did not take sufficiently into account the need not to hinder effective and
277 Insufficient conceptual distinction is being made between normal competition and
competition on merits, see Vickers, Some Economics of Abuse of Dominance, Oxford
Department of Economics Discussion Paper Series no. 367 (2007), 6.
278 For the view on net consumer harm in the long-run through pricing below costs with
the intention of eliminating competitors, see Vickers, supra n 277, 8-9.
279 Case COMP/C-3/37.990, Intel, OJ C227/2009, paras 722, 775; 962-5, where HPs incentive to remain loyal to Intel distorted competition on the merits.
280 Case T-201/04, Microsoft, 2007 5 CMLR 11, ECR II-3601, para 229.

85

undistorted competition.281 Furthermore, the court held that the public interest
in maintaining effective competition in the market permitted interference with
the exclusive right of the owner of the intellectual property right and was not
objective justification.282
Under both competition law regimes, positive or negative-based value
judgements must be taken as merely statements that are unable to constitute a
normative definition from which different types of abuse derive and which could
be applied to a particular case. The definition of abuse is, indeed, the most
difficult, as all possible anti-competitive practices may not be included when
defining an abuse of dominance by reference only to such general principles.
Therefore, allowing for the possibility of an undertakings defence by an
objective evaluation of its own commercial interests is crucial.
However, due to practical reasons, even the German concept of abusive
exploitation itself has been unable to offer a general definition that could
include all types of anti-competitive or abusive conduct engaged in by dominant
undertakings. Nonetheless, the paradox is that Section 19(1)s general
prohibition of abusive exploitation focuses particularly on the exclusionary
conduct of a dominant undertaking as a supplier or purchaser of a certain kind
of goods or commercial services under Section 19(4). This may also respond to
the general criticism that, under EU competition law, the abuse of dominance has
enforced merely exclusionary and not exploitative abuse. The definition of
abuse of dominance in Hoffmann-LaRoche related abuse especially to
exclusionary conduct. This has been repeatedly reiterated, but interpreted as
disregarding merely exploitative practices, especially charging excessively high
prices, as they do not hinder competition.283 In such a situation, the concept
of impairment of the ability of undertakings to compete in a manner affecting
competition is more appropriate than hindrance or prevention-based competition.
This distinction is justified by Article 102, which does not include non-dominant
undertakings as Section 20 does.
Despite recognition of the practical inability to offer a comprehensive
definition of the abuse of dominance, which would make it possible to include
under Article 102 a list of potentially anti-competitive practices that were found
to be abusive, the overall criticism is that the courts have taken rather a

281 Microsoft, para 775.

282 Supra n 50, para 1333.
283 Whish, supra 36, 194.

86

formalistic approach that is devoid of economic content. Such an approach

would encourage a per se prohibition of abuse.284
Put concisely, when defining abuse, the shortcoming is using the two concepts
of impairment and hindrance at opposite levels of cross-intervention. Methods
other than normal competition also require intervention for the abuseprevention ex-ante, where non-dominant undertakings enjoy a position of
economic strength relative to that of their own competitors. A fortiori, dominant
undertakings should be able to defend themselves by an objective justification.
The subjective element of intention is, however, a matter of unfair
competition. Thus, a specific intent does not act as a market power test that
would prove that the intention behind an anti-competitive conduct is to restrict
competition.285 The hypothesis of market power makes sense only to the extent
that a dominant undertaking may abuse its power to deter other rivals
intentionally by coercion or by deceptive conduct. The example of predatory
pricing is, perhaps, the most eloquent when it comes to the interplay of the
objective concept of a misuse of market power that affects market structure and
the subjective concept based on intent and direct harm to rivals. In the latter case,
in determining whether supra-normal prices will arise from below cost pricing,
emphasis should be placed upon the relative financial strength of the firm that
predates and for which subsequent evidence of a recoupment of losses is
required.286 The definition of predatory pricing of unfair competition is where a
price that does not cover the costs is objectively capable of squeezing one or
more competitors out of the market and is actually used to do so.287 The
subjective intent requires, therefore, actual exit, but it cannot exist if it is not
objectively capable of deterring rivals. This is based on the assumption that a
smaller competitor cannot squeeze out a more powerful one.288 Thus, nondominant undertakings could use their financial strength against less powerful
ones, for example, selling below cost systematically over longer periods and
without objective justification. For free competition, however, the subjective
criterion with the intention of elimination, as regards disciplining, is a value

284 Ibid. See J. Drexl, Is there a more economic approach to intellectual property and
competition law?, in: Drexl (ed.) Research Handbook on Intellectual Property and Competition Law, Elgar, 2008, 30.
285 O. Odudu, The Role of Specific Intent in Section 1 of the Sherman Act, 25(2002)4 World
Comp., 478.
286 Ibid, 489. However, under the ARC, the recoupment of losses is not required, save for the
subjective predation under the AUC; see Mschel, in: Immenga/Mestmcker (eds.), supra n 7, para 122.
287 Khler/Bornkamm, supra n 71, paras 10189-92, 435; see Federal Court of Justice, (FCJ),
Anzeigenpreis I, GRUR 1990, 685, 686; FCJ, Anzeigenpreis II, GRUR 1990, 687, 688.
288 Ibid, para 10191; FCJ, Preiskampf, GRUR 1990, 371.

87

judgement of the monopolists nature of its low price policy, which is

inappropriate.289 The reason lies in both the difficulties in proving such a
subjective intent and the complex motivations in respect thereof.
In contrast, the concept of non-prevention or impairment-competition requires
intervention where a super-dominant or paramount undertaking impairs the
ability of all its competitors to compete and affects competition in the market.
Furthermore, the German concept of impediment competition alone does not
infer any market-structure effects from the effects of the alleged conduct in the
market.290 On the contrary, dominant undertakings have no general
responsibility for the market-structure alone or for the economic viability of the
other competitors.291 The general prohibition of impairment does not even
address the concept of relative market power in the same way that the hindrance
abuse or prevention-competition does.
Therefore, both concepts reflect two extreme dimensions of intervention. The
former is more severe, even if it has negligible effects. The latter is more
permissive even if its effects may amount to a consistent abuse. Unfortunately,
there is no hybrid between them under the German abuse of dominance.
However, as the ARC itself does not, primarily, address exploitation or any
excessive or unfair pricing, the latter can be traced back to the early ordoliberal
concepts, which were borrowed from the AUC and enforced as price control.292
This explains why under the Treaty of Rome the prohibition of such exploitative
abuses was retained in Article 102 (a). Imposing unfair purchase or selling
prices or other unfair trading conditions is able to substantiate Section 20s
unfair hindrance abuse, as a particular form of discrimination with regard to the
pricing or non-pricing variables of competition. As will be detailed in section B,
the early German practice evaluated such pricing practices based on the overall
performance of an undertaking for which competition on the merits required
consideration of the secondary goal of ensuring fair competition.
Thus, if a monopolist is in a position to reduce output and increase the price of
its products above the competitive level, thereby exploiting customers, it does
not necessarily mean that such an anti-competitive practice cannot include
exclusionary conduct if it also raises barriers to entry into the market. Therefore,
the systematic interpretation of the ARC includes exclusionary conduct as a
particular type of abusive exploitation. In conclusion, it is so far clear that
competition on its merits is subordinated to performance competition and the
289
290
291
292

88

Mschel, in: Immenga/Mestmcker, supra n 7, 19, para 122.

Ibid, para 13.
Ibid.
See Ch.IV.2. Ibid, Mschel, para 151, where the control of excessive pricing is only a
makeshift.

policy objectives of free and fair competition come into play. The responsibility
of dominant undertakings to compete on their own merits is, however, greater
under Section 20 where even non-dominant undertakings are prohibited from
using their position in an unfair manner.

c) Understanding Performance v Competition on the Merits under EU

Competition Law
In contrast to the EU abuse of dominance, the German misuse of relative market
dominance or unfair hindrance is a negative value-judgement based on an
unjustified and undue conduct of an undertaking, which is subordinated to the
primary objectives of free competition and economic efficiency, but aims to
ensure fair competition.293 The understanding of unjustified conduct is similar
to the courts definition of exclusionary conduct as a conduct that lacks an
objective economic justification.294
The unjustified differential treatment or unfair hindrance, therefore, is
identical to the EU understanding of the abuse of dominance, namely, anything
that is not legitimate competition, that is performance-based competition,
namely, competition on the merits.295 Thus, this understanding is contrary to an
understanding of abuse where the undertaking has a special responsibility not
to distort genuine competition, but is similar to that found under German
unfair competition law.296 Therefore, under EU competition law, the concept of
competition on the merits with a further emphasis upon genuine undistorted
competition has a rather original standing. Under German competition law, this
understanding exceeds the scope of the ARC.

293 Mschel, in: Mestmcker/Immenga, supra n 7, para 107. Accordingly, the theory of the
two barriers explains that the practice of Section 20(1) and (2) ensures that the balancing of interests is weighted against free competition; in the same vein, Lange/Bunte, supra n 58, paras 106 and 138; FCJ, Case KVR 9/81, Gemeinsamer Anzeigenteil, 1982
WuW/E, 1965-6; FCJ, Flugpreisspaltung, 22 July 1999, WuW/E DE-R, 375, 377; FCJ,
Strom and Telefon I & II, 4 November 2003, WuW/E DE-R, 1206.
294 Case T-203/01, Michelin II, 2003 ECR II-4017, paras 107, 110.
295 Case C-62/86, AKZO, 1991 ECR I-3359, para 81.
296 Khler/Bornkamm, supra n 71, para 36, 116; J. Glckner, The Law Against Unfair
Competition and the EC Treaty, in: Hilti/Henning-Bodewig (eds.) Law Against Unfair
Competition, Max Planck Institute Studies on Intellectual Property, Competition and Tax
Law, vol. 1, Springer, 2007, 77.

89

Generally, under German unfair competition law, the principle of undistorted

competition must be interpreted in the light of the overall public interest.297 In
the law governing unfair competition, it is not entirely clear the extent to which it
aims to protect the other market participants, especially consumers, against
unfair competition.298 Section 3 AUC prohibits unfair competition practices
insofar as they are capable of restricting competition to the disadvantage of
competitors, consumers, or any other market participants.299 However, the
second sentence of Section 1 AUC does not aim to ensure competition based on
performance, that is, competition on the basis of price and quality of goods or
services.300 On the contrary, the concept is used solely within the meaning of
non-performance or off-merits competition. Therefore, performance cannot
be used to evaluate certain practices that relate to demand or to persuading
consumers, such as predatory product preannouncements.301
As has already been noted, under both the German Acts, these concepts are
rather vague. Thus, in order to evaluate anti-competitive practices, performance
should be applied as an indicator to all types of abusive anti-competitive
conduct. In contrast, competition that is not on merits applies only to particular
types of abuse, such as unfair hindrance as prevention-abuse, and to broad unfair
commercial practices that ensure producer, supplier or customers protection.302
For example, the German court held in Kombinationstarif that conduct that is not
based on performance or competition on the merits must be deemed a grey
area of the AUC and that the remaining competition needs to be further
restricted.303 The first limb of this judgement is repeated in Milchaustauschfuttermittel where the court held that for those practices that are not based on
performance, unfair competition comes into play.304 In contrast, pro-competitive
297 On the interplay of the public with EU competition goals and undistorted competition,
see generally Chiri, Undistorted, (un)fair competition, consumer welfare and the interpretation of Article 102 TFEU, 33(2010)3 World Comp., 417-36.
298 Supra n 71, para 35, 115.
299 Ibid, para 36, 116.
300 Ibid, para 39, 117.
301 Mschel, supra n 7, para 139. See Sections 3 and 4(1) AUC.
302 Khler/Bornkamm, para 39, 117; Mschel, in: Mestmcker/Immenga, 19, paras 102-4,
where the analysis pinpointed the danger of replacing free competition in the sense of the
absence of restraints to competition, which cannot be replaced by extrinsical practices of
performance-competition. The same is valid for those unfair practices of the AUC that
may be justified by market-related unfairness within Section 3 AUC; Makert, in:
Mestmcker/Immenga, 26, para 138.
303 KG, Kammergericht, (Higher Regional Court Berlin), Kombinationstarif, 12 November
1980, WuW/E, 1767, 1772/73. The latter is known as the two-barriers theory; Langen/Bunte, supra n 58, 131.
304 KG, Milchaustauschfuttermittel, 11 November 1983, WuW/E, 3124, 3130. Against nonperformance competition, HRC (Higher Regional Court) Dsseldorf, Strom & Fon, 21

90

behaviour that leads to an increasing performance and to a better service for the
consumer is allowed irrespective of whether it hinders smaller competitors.305
In Intel, the Commission recognised that it cannot make absolute judgements
on the technical performance of the products at stake, or relative judgements on
the competitive performance of AMD and Intel products. Despite recognising
that it could not assess their performance under free and effective competition, it
enforced the prevention-concept of the competition on the merits.306 The latter
approach would come into play for non-dominant undertakings relative to
smaller competitors. Therefore, the Commissions approach is inconsistently
applied to a dominant undertaking that is not assessed based on its economic
performance, but rather the evaluation is based on the customers or purchasers
free choice as an economic variable of the unfair competition.307 It concludes
that end-customers were prevented from choosing other products on the merits
and that Intels conditional rebates and payments diminished competitors
ability to compete on the merits of their x 26 CPUs, which reduced consumers
choice and lowered incentives to innovate.308
However, the ability to compete of all competitors falls outside the scope of
prevention of the German unfair hindrance of smaller competitors by nondominant undertakings. Furthermore, the emphasis should be upon impairmentcompetition, as it relates to all competitors ability to compete and thereby affect
competition in the market. The Commission focuses more upon free choice,
consumer harm, and further innovation incentives that are insufficiently
quantified in the long run. The intervention, however, is granted by relying on
the as-efficient competitor test for rebates by showing that the rebates Intel
granted to Dell, HP, NEC and Lenovo are capable of causing or likely to cause
anticompetitive foreclosure (which is likely to lead to consumer harm).309
Consequently, an equally efficient competitor would be prevented from
entering the market, which does not appear to be the case. The Commission
itself suggested that this analysis is in principle independent of whether or not

305
306

307
308
309

February 2001, WuW/E DE-R, 880-3. In recent practice, the criterion of performancecompetition is paramount, see FCJ, Strom and Telefon I & II, 4 November 2003, WuW/E
DE-R, 1206-12.
KG, Sonntag Aktuell I, 30 May 1979, WuW/E, 2148/9; KG, Fertigfutter, 12 November
1980, WuW/E, 2403, 2407.
Intel, supra n 279, paras 1689. As Intels competitor, Dell believed that the superior
technical performance of AMDs Opteron microprocessor would give the EEMs that had
adopted AMD a significant competitive advantage, para 184.
Ibid, paras 915, 938, 959.
Ibid, paras 1603, 1616.
Ibid, para 923. The concept requires extensive analysis in Ch.V.

91

AMD was actually able to enter.310 As will be examined further, in the second
section, it makes a real difference whether the as-efficient competitor is unable to
enter the market, is already in the market and needs to remain viable or, in
exceptional circumstances, whether, although in the market, it must survive
the competitive pressure in the market.311 This premise is also questioned from a
US perspective of unfair methods of competition to the extent that it does not
prevent a competitor from entering the market.312
As has already been suggested, Intel is the first case where the Commission
endorsed its newly introduced concept of anticompetitive foreclosure leading to
consumer harm.313 The outcome of such an intervention is not beyond any
arbitrariness where the appraisal extends the market structure focus to include
market participants by attempting to prove the subjective intent as part of a
single continuous strategy aimed at foreclosing Intels competitor AMD.314
Intels manoeuvres are naked restrictions aimed at restricting the
commercialisation of specific AMD products. Single continuous strategies are
also in a similar vein to those marketing strategies under Section 20 that are
continuous and systematic measures.
In conclusion, the Commission exceeded its appraisal of Intels performance
and defended the public interest. For example, it afforded market participants
protection in a broad sense. Under EU competition law, it would be restricted
solely to the competitors freedom of action to bring products or services on to
the market without being hindered. Under the Commissions fair and effectsbased approach, all the other economic variables, such as consumers free choice
or innovation, are considered.315
The most conclusive evidence of the misleading interpretation of unfair
competition with a paramount focus upon competition on the merits is where the
Commission held that Intels conduct had detrimental effect on competition on
the merits.316 Accordingly, ensuring free competition based on the undertakings economic performance is subordinated to that of fair and undistorted
310 See Intel, summary, 13 May 2009, decision relating to a proceeding under Article 82 EC
and Article 54 EEA Agreement, para 29.
311 See Ch.VII; Monti, below n 313. Monti argued that the probability of non-intervention is
when a dominant undertaking is able to show that an as efficient competitor could survive the dominant firms defensive strategies.
312 See Crane, supra n 225, 6.
313 G. Monti, Article 82 EC, 1(2010)1 J.Eur.Comp.L&Prac., 10.
314 Intel, paras 917; 1681; 1737-48.
315 See below n 302; Crane, supra n 225, 6-7. Commissioner Rosch argued that Section 5 on
unfair methods of competition would have applied in the US Intel case if Intel reduced
the variety of choices facing consumers, even if it did not raise prices because of the acquisition or maintainance of monopoly power.
316 Ibid, para 1670.

92

competition. Furthermore, the Commission concluded that competition on the

merits was harmed by Intels conduct.317
Similarly, the tying of Internet Explorer to Windows prevents a Microsoft
competitor, Opera, from competition on the merits and forecloses competition in
the market for web browsers.318 The decision follows the same elements of the
competition on the merits, namely, the likelihood of foreclosure effects due to an
artificial distribution advantage that other web browsers were unable to match.319
Even if consumers can download other web browsers via the internet free of
charge, the Commission held that vendors must overcome users inertia and
persuade them not to limit themselves to the pre-installed one and that there are
also barriers associated with such a switch, such as searching, choosing and
installing, due to a lack of technical skills.320 Therefore, the Commission relied
on consumer surveys.
Finally, the focus on innovation is also present where the Commission found
that the tying of Internet Explorer limited innovation in web development, as
web designers and software developers had an incentive to target primarily
Internet Explorer.321 Furthermore, the use of web applications can reduce the
dependency of customers on specific operating system platforms and Microsoft
was requested to make such an option available to users. In contrast, it may be
argued that the dependency did not have any actual effects on competing
browsers, especially hampering them from innovating in their own products, and
that the remedy might benefit more customers as competitors and not final
consumers.322
If in Intel, the Commissions approach is still rather soft towards a subjective
intent as derived from the anticompetitive foreclosure leading to consumer harm,
the situation clearly changes in Rambus.323 The standard-setting process involved
an alleged intentional deceptive conduct for which an effective setting is a
precondition to technical development and the development of the market in
general to the benefit of consumers.324 The alleged deceptive conduct refers to
the non-disclosure of patents and patents applications, commonly known as
317
318
319
320
321
322

Intel, para 1672.

Case COMP/C-3/39530, Microsoft (tying), 12 December 2009, para 5.
Ibid, para 39.
Ibid, para 49.
Ibid, paras 56-8.
For criticism of this decision, see J. Robinson, The Microsoft Browser Case, 4(2010)1 J.
Eur.Comp.L.&Prac., 318.
323 Case COMP/38636, Rambus, 9 December 2009, OJ C30/2009. See, summary decision
relating to a proceeding under Article 102 TFEU and Article 54 EEA Agreement; T. De
Meese, European Commission Accepts Commitments from Rambus in Patent Ambush
Case, 3(2010)1 J.Eur.Comp.L.&Prac., 215-7.
324 Summary decision, para 3.

93

patent ambush.325 The Commission concluded that Rambus might have abused
its dominant position in the DRAM interface technology market by claiming
royalties for the use of such patents, which is incompatible with Article 102 in
the light of the specific circumstances of this case.
In particular, the Commissions focus is upon Rambuss
Intentional breach of JEDEC policy and the underlying duty of good faith in the context
of standard-setting, which resulted in a deliberate frustration of the legitimate expectations
of the other participants

in the process. There is no better evidence elsewhere in any case of both the
subjective intent and the protection of other market participants or of the
general public. Any arbitrariness of such an intervention occurs when the shift
from the objective capability to materially deceive competitors is requiring the
cumulative intention of a dominant undertaking. Rambus is not abusing its
position, but its alleged intentional conduct affects competitors, such as the
capture of the JEDEC industry standards as an industry lock in effect as a
whole.326 Thus, particularly the lock-in effect is left unsubstantiated as
evidence of any attempts to demand or persuade customers according to the
definition of unfair competition, for which reasons Rambus has been offered
commitments.327
In fact, the assessment of market dominance is even unnecessary if the pleas
against Rambus could be substantiated as unfair competition practices. As will
be examined further, apart from secondary legislation, Article 102 does not
include provisions that could include unfair deceptive commercial practices as
Section 5 Federal Trade Commission (FTC) Act or Section 5 AUC on deceptive
advertisement do.328 However, such provisions exist in the harmonisation
directives of national unfair competition rules. Therefore, the examination of an
allegedly exploitative abuse by charging unfair or excessive royalties should
harm the economic interest of consumers or competitors and be analysed further
as a potentially deceptive conduct engaged in by any trader, including dominant
undertakings.

325
326
327
328

94

Rambus, paras 27-8.

Ibid, paras 43-7.
Ibid, paras 49-50.
Crane, supra n 225, see the 1914 prohibition of unfair competition and the 1938 WheelerLea Amendment on the prohibition of unfair or deceptive trade practices; Finger/Schmieder, supra n 92, where deceptive advertisement is liable to criminal prosecution without damages. For the 1896 and 1909 enactment of German unfair competition,
see Rittner/Kulka, supra n 32; Khler/Bornkamm, supra n 71.

Even under the US antitrust laws, recent cases such as Intel and Rambus have
highlighted particularly the monopolists deception.329 In particular in the US
case, it was unclear whether Rambus had a tendency to deceive or was likely to
influence the standard-setting organization. Thus, uncertainty exists about
whether Section 2 Sherman Act, therefore, can be directly applied or whether it
falls under Section 5 FTC, whilst some presume that deceptive advertising has
only a de minimis effect on competition.330
Following this line of developments in the US, it appears that there is, indeed,
a risk of not punishing a monopolists anti-competitive deception as a
dishonest or unfair business method of competition. So far, it is solely Article 2
(2) Directive 84/450/EEC on misleading advertising that refers to any
advertising that [d]eceives or is likely to deceive the persons to whom it is
addressed or whom it reaches and which is likely to affect their economic
behaviour or which, for those reasons, injures or is likely to injure a
competitor.331 However, advertising is only one particular marketing strategy
that, in certain circumstances, may deceive the general public. Since its
implementation in the Member States and upon the harmonisation of the Unions
unfair commercial practices, the Commission does not have any regulation on
EU unfair competition. Therefore, the legal background of unfair or dishonest
business strategies is fragmented and demands creativity from the competition
authority in relying on specific directives.
Article 1 of the above directive states that its purpose is to protect consumers
and the interests of the public in general against misleading advertising and the
unfair consequences thereof. Notwithstanding whether the provisions of this
directive are sufficiently clear and precise, unfair commercial practices are not
recognised as EU unfair competition law, which raises the same question as
under US antitrust statute laws regarding which rules come into play. The EU
case law recognition of abuse as having recourse to methods different from
those which condition normal competition332 or of not allowing undertakings
conduct to impair undistorted competition within the internal market may not

329 M.E. Stucke, How Do (And Should) Competition Authorities Treat a Dominant Firms
Deception, (2010) SMU L.Rev., 57(2009) University of Tennessee College of Law Research Paper, 51. Stucke explained that Section 5 FTC only requires evidence that the
misrepresentation would likely deceive consumers acting reasonably under the circumstances in a material respect.
330 Ibid, 48.
331 Directive 84/450/EEC, OJ L150/1984.
332 Case C-85/76, Hoffmann-LaRoche, 1979 ECR 461, paras 6 and 91; Case 322/81, Michelin I, 1983 ECR 3461, para 70; Case C-62/86, AKZO, 1991 ECR I-3359, para 69; Case
C-95/04, British Airways, 2007 ECR I-2332, 66; Case C-202/07 P, France Tlcom, ECR
I-02369, para 105.

95

suffice. If it does not remedy their inclusion, this questions whether there should
also be another mandate for prohibiting unfair methods of competition, such
as unfair or deceptive practices. Should the courts rely on this and develop the
practice based on the existent harmonising directives or should it be for the
Commission to intervene directly? In such an exceptional circumstance, the
objective concept of abuse is partially shifted to a subjective concept that is
complementary to the material capability and the likelihood of effects. Normally,
it should then be for the European courts to double-check the Commission and
establish the actual effects of the dishonest or unfair business method of
competition. In practice, it means that the anti-competitive unfair practice should
cumulatively include a subjective intent. It remains unclear why the US approach
tends not to require actual effects whilst the German unfair competition practice
does.
If the Commission were to have a regulation on EU unfair competition to
cover the exploitative use of intellectual or industrial property rights such as
patents, trade-marks, business secrets and so on and to address specific
commercial practices of undertakings, where both material capability and
subjective intent are relevant, the outcome of cases could be different and the
intervention more predictable for undertakings. Therefore, in the situation where
the unfair or dishonest practices of dominant undertakings, through misleading
representations or fraud in the process of granting property rights, distort
effective competition in a substantial part of the internal market, the Commission
should be able to intervene. The fines could be even higher in the light of the
monopolists deception. However, the Commission should be aware that
intervention bears another risk of conflicting goals and interests with regard to
the primary protected property right such as patents and compulsory licensing
particularly due to their lack of European harmonisation.

d) Final Remarks on the Special Responsibility

As has already been explained, when the EU special responsibility of ensuring
undistorted competition is interpreted and applied by reference to this general,
underlying principle, rather than free and fair competition, this is to a certain
extent an expression of the EU unfair competition law.333 Similarly, the German
understanding of undistorted competition under the second sentence of Section 1
333 See UCPD 2005/29/EC, amending Council Directive 84/450/EEC, Directives 97/7/EC,
98/27/EC and 2002/65/EC, OJ L149/2005 which concern unfair business-to-consumer
commercial practices in the internal market; Council Directive 93/13/EEC on unfair
terms in consumer contracts OJ L95/1993.

96

AUC is linked to the former principle.334 Furthermore, undistorted competition

also applies to the Unions unfair competition rules, such as unfair commercial
practices.335
The separate mentioning of a public interest in maintaining or ensuring
German undistorted competition suggests that its underlying purpose lies not
solely in affording immediate, direct protection to any market participants or in
safeguarding their individual or collective interests, such as the interests of
associations of consumers or undertakings, but in safeguarding competition as an
institution.336 Similarly, Advocate General Kokott argued that Articles 101 and
102 are not primarily designed to protect the immediate interests of individual
competitors or consumers, but to protect competition as an institution.337 Thus,
the ARC does not allow the abuse of dominance to be based on public morals
or public policy as under Section 138 German Civil Code (BGB), respectively
AUC.338 Therefore, German competition law disregards broad trade distortions
of competition. On the contrary, German unfair competition law affords
consideration of competitors, consumers and any other market participants in
general and in the light of undistorted competition.339 The unfair competition
rules, therefore, are teleologically interpreted in light of the first sentence of
Section 1 AUC, which refers to the general interests of consumers, competitors
or of any other market participants.340
334 Khler/Bornkamm, supra n 71, paras 38-9, 116; UCPDs recital 3 refers to unfair
commercial practices that show market differences, which can generate appreciable
distortions of competition and obstacles to the smooth functioning of the internal market. Recital 4 recognises that such unfair practices harm consumers economic interests.
335 Ibid. See supra n 324; Directive 84/450/EEC, OJ L150/1984; Chiri, supra n 297.
336 Khler/Bornkamm, para 37, 116.
337 Opinion of Advocate General Kokott, 19 February 2009, Case C-8/08, T-Mobile Netherlands BV and Others, 2009 ECR I-4529, para 58; Case C-95/04, British Airways v Commission 2007, ECR I-2332, 68.
338 Gtting, supra n 192, para 60; AUC, supra n 3. Comparatively, the UCPD 2005/29/EC
established a single prohibition of unfair commercial practices that distort consumers
economic behaviour. Therefore, for an adequate and effective enforcement of unfair
competition rules, Article 11(2) requires Member States to confer upon the courts and
administrative authorities powers that allow them to consider all the interests involved and in particular the public interest. However, Article 12 stated that penalties for
unfair competition rules are laid down by Member States, whilst Article 11(3) stated that
administrative authorities must be composed so as not to cast doubt on their impartiality.
339 Khler/Bornkamm, 103.
340 Ibid, paras 5, 106. In early practice, the objective was the interest of the public in general. For example, competitors protection is afforded with regard to their competitive
freedom of action, which is not limited to bringing products or services onto the market
without them being hindered. Rather it refers to all the economic variables, such as re-

97

As has already been noted, the analysis of the policy objectives acknowledged
that the German concept of undistorted competition is based on fair
competition.341 Under unfair competition, the special responsibility not to distort
competition is not assessed objectively based upon the conduct of the market
participants or upon their economic performance. Unfair competition assumes
that economic freedom is already created in the market and should be maintained
unaltered. Therefore, the rules on unfair competition come into play to ensure
that free and effective competition remains undistorted and fair.
In conclusion, the special responsibility not to distort competition on the
merits, therefore, cannot be based only on an exclusive objective assessment of
the economic performance. Thus, under unfair competition law, the intentional
or aggressive, harmful conduct is relevant because it directly harms customers,
producers or competitors.
The German abuse of dominance concept is, however, no empty theoretical
concept insofar as its underlying principle of free competition filled the vacuum
of having only unfair competition. Economic freedom as embedded in the
German constitution is part of the economic rights and is crucial to the extent
that it allows the creation of a system of free competition. After its
establishment, maintaining free competition unaltered or undistorted is ensured
by a more severe mechanism of unfair competition law. The Intel and Rambus
decisions are, therefore, a paradigmatic shifting towards incipient key elements
of EU unfair competition.

e) Understanding the Inter Member-States Distortions of Competition

EU competition law has been criticised for having too vague concepts, such as
competition on the merits and genuine undistorted competition.342 In contrast to
the German abuse of dominance concept, which is based on performancecompetition, the major shortcoming of an approach such as that used in EU
competition law is having the EU abuse based primarily on competition on the
merits, as defined by a positive, rather than negative, judgement of performancecompetition, which needs to be subordinated to free competition and economic
efficiency. An efficiency-based defence is also workable solely for particular
cases of (unfair) hindrance, but cannot replace undertakings general objective
search and development, purchasing, production, employees, financing, advertising or
marketing, supra n 71, para 7, 107. It also addresses consumers economic interests, the
right to information, or freedom of choice, supra n 71, paras 12-3, 108-9.
341 For a different stance, Khler/Bornkamm, paras 38, 116.
342 ODonogue/Padilla, supra n 33, 177.

98

justification. The challenge of EU competition law lies in its evolutionary

understanding of genuine undistorted competition towards broad public policy
objectives.343
A dynamic interpretation of the Lisbon Treaty, therefore, completes the
understanding of distortion in the light of its development from inter-Member
States trade distortions to broad distortions that affect the internal market.
Should distortions then be interpreted as serving solely the approximation of
national competition laws, as under Articles 116 or 117 TFEU, or should it,
indeed, be necessary to emphasize further the broader distortions of competition
that may also affect unfair competition law within the internal market? The latter
aspect requires consideration of the common consumer rules and of their
standing as subordinated to the imperative of market integration.344
EU unfair competition directives are intended to contribute to the proper
functioning of the internal market by the approximation of national laws.345 If the
answer to the last question is affirmative, both EU competition law and
secondary legislation on unfair commercial practices and on consumers have the
same purpose, namely, not to distort genuine competition in the internal market.
Therefore, whilst enforcing such common rules in order to maintain effective
competition in the internal market, a distinction should be made between free
and fair competition and a more severe punishing mechanism be devised against
unfair competition, where unfair commercial practices may affect a general
public interest.346 These questions can be explained in a somewhat insufficient
and vague distinction under the EU abuse of dominance concept as being solely
a misuse of market power by undertakings that hinder or impede free, fair, and
unfair competition, especially the overlapping between fair and unfair
competition. Misleading also is the German systematic interpretation of
competition rules, namely, that hindrance directed against non-dominant
undertakings is included under the objective concept of the abuse of dominance.
Whenever fair competition, as based on a negative evaluation of competition
off its merits, is jointly expressed as a special responsibility not to distort
competition, competition on the merits exceeds the boundaries of fairness under
competition law and may overlap with unfair competition if applied in light of
the public interest in maintaining effective and undistorted competition. In

343 For the analysis of a recent application of public interest, see B.Ch.VIII.
344 See Ch.VI.
345 UCPD 2005/29/EC stated its purpose in Article 1to contribute to the proper functioning
of the internal market and achieve a high level of consumer protection by approximating
the laws, regulations and administrative provisions of the Member States in unfair commercial practices harming consumers economic interests.
346 Chiri, supra n 297.

99

practice, the danger of using such vague concepts of abuse of dominance may
not be obvious immediately and therefore, the understanding of distortion
related to the policy objective plays a key role.347
The abuse of dominance policy, insofar as the general underlying principle of
undistorted competition is not itself restricted to Article 116 or 117s
understanding of distortion, limits the right to exceed the boundaries of any
administrative action of Member States. Then, undistorted competition serves an
overall public policy goal of ensuring that competition is not distorted either by
unfair competition practices or by legislation enacted by Member States as a
different provision by law, regulation or administrative action. In the latter
situation, the resultant distortion needs to be eliminated as it distorts the
conditions of competition in the internal market. However, other than
administrative legislation that disrupts normal competition in the internal market,
broad distortions may affect inter-Member States trade and should be afforded
consideration with regard to public policy goals.

f) Understanding Broad Distortions of Competition

The conceptual line between EU competition and unfair competition law is a thin
one. This is even more obvious when the court concluded that Microsoft had a
lead over its competitors not based on the merits of its products, but by its
unfair interoperability advantage.348 Is unfair competitive advantage, as part
of the protection of any competitors disadvantage, and the public interest in
maintaining effective and undistorted competition, as an exceptional
circumstance for the duty to disclose, not in line with the German unfair
competition approach? However, solely an overall interest in opening up the
Media Player market may, indeed, be in line with the ARC and its decision.349
The Federal Court of Justice (FCJ) deemed a refusal to supply as abusive
where, on balance, the interest in opening up the pharmaceutical market to more

347 Ibid.
348 Microsoft, paras 460 and 407; Intel, para 288, where the Commission held that the transformation of a rebate awarded only to Dell into a lower price applicable identically to all
its competitors was a net lost competitive disadvantage. See also Crane, supra n 225, 15
where in the US Intel some elements of deceptive conduct of unfair competition consisted in deception by failure to disclose information about the effects of its redesigned
compiler on non-Intel CPUs and the denial of interoperability between competitive GPUs
and Intels CPUs, which deceived about interoperability.
349 Chiri, supra n 297.

100

competition was superior to the undertakings commercial interests.350 Or, the

FCJ balanced Scandlines interest in having unlimited use of its own terminal
against the applicants interest in starting up competing ferry operations.351
However, in Microsoft, Sun did not require access to interoperability
information in the sense of a classical refusal to supply. This is also recognised
in the US Intel case where elements of unfair competition are present with regard
to deception by failure to disclose information.352
However, comparing the pharmaceutical with the Media Player market may
not have the same relevance under German competition law. Thus, Article 3
TEUs intellectual and industrial property policy objective of promoting
scientific and technological advance within the internal market makes courts
balancing even easier under unfair competition. This is despite the lack of the
Unions exclusive competence for consumer protection or unfair commercial
practices. As has already been proposed, Article 3 TEU is the legal basis for the
Unions interest in ensuring fair, undistorted, and effective competition within
the internal market. Insofar as a technological advance represents a general
public interest, a duty to disclose information protected by patents, trademarks or
business secrets should be limited only to exceptional circumstances, which must
be included in an EU regulation. Otherwise, the only support in a directive may
not suffice where particular elements of unfair competition with relevance for
antitrust law are disregarded.
Under EU competition law, the only provision that could justify opening up
the markets is Article 119 TFEU. Therefore, such an abuse of dominance policy
interferes with undertakings economic freedom. However, in Microsoft, this
represents largely an expression of interventionism into the undertakings
business and commercial interests, as a public interest of the competitors and
consumers is at stake. From a German perspective, therefore, the court exceeded
the boundaries of free and fair competition policy goals and gave preference to
those of unfair competition.
In conclusion, the concept of abuse of dominance that relates to a public
interest in maintaining effective competition should be able to go beyond the
scope of traditional competition law and overlap EU unfair competition rules.
Therefore, if no clear borderline is traced between the two, conflicting policy
goals that underline public interest may lead to a harsh criminal law whilst

350 FCJ, KVR 10/94, Importarzneimittel, 1995, WuW/E, 2990; FCO, B 9-199/97; B 9-16/98,
Puttgarden (Scandlines) 1999; FCJ, 2002, WuW/E DE-R, 977.
351 FCJ, KVR 15/01, Puttgarden, 2002, WuW/E DE-R, 977.
352 Crane, supra 225.

101

enforcing Article 102.353 This creates a less predictable business environment for
both dominant and non-dominant undertakings.
Therefore, there is a need for a clear re-consideration of exactly what amounts
to an abuse of dominance that distorts competition. Consideration should also be
given to how this makes it possible to establish a distinction between
undertakings pro-competitive, neutral and any anti-competitive conduct that
affects competition, and between normal competition and unfair commercial
practices by recourse to any methods different from those that arise under
competition law. In particular, the Microsoft judgment is an example where the
concept of abuse of dominance exceeds the traditional understanding of a
distortion, by considering the overall public interest in maintaining effective
competition whilst opening the Windows Media Player market for more
competition.354 In casu, the public interest benefits consumers, but mostly the
dominant undertakings competitors. This is also the case in Intel, where the
Commissions recent interpretation is that not all competition on price can be
regarded as legitimate, when it is a recourse to means other than those within
the scope of competition on the merits.355 This interpretation reflects a different
level of understanding of the competition on the merits, where its scope remains
unclear.

g) Conclusions
The dynamic interpretation of competition and unfair competition rules has
proved that both competition and unfair competition are teleologically
interpreted in light of the same underlying principle of undistorted competition
as is subordinated to the internal market. Thus, the EUs free and fair
competition does not have the same primary objective as unfair competition and,
therefore, a further enforcement of the EU unfair competitions public interest
goals would run counter to the EU competition rules if the courts were to fail to
perform a balancing of the overall policy objectives under both areas.
Therefore, regarding anti-competitive practices, during balancing, fair
competition should be subordinated to free competition and undertakings
freedom of action. Other unfair methods of competition, such as EU unfair
competition, should aim to achieve fair, honest, and undistorted competition. For
unfair competition, the Commissions competence as DG COMP would exceed
the power confined to a national competition authority and, therefore, a proper
353 Chiri, supra n 297.
354 Case T-201/04, Microsoft, 2007 5 CMLR 11, ECR II-3601, para 646. See B.Ch.VII.
355 Intel, supra n 278, paras 915.

102

balancing of public interest in maintaining effective competition would result in

over-deterrence.356
However, it is controversial to endorse the view that the Commission misuses
the power given to it by the Treaty itself when such a surplus of competence is
now achieved by the Unions exclusive competence for competition, without
further mention of to which competition it refers. Article 3 (b) TFEU states that
the Union shall have exclusive competence in the establishing of the
competition rules necessary for the functioning of the internal market. Which
rules function then for market integration? Unfair competition practices as such
are not embedded in the same title with competition rules. Whilst at least
consumer protection falls under the Unions share of competence with Member
States, the Commission would, indeed, exceed its overall competence as a
competition authority or public body responsible for penal fines for unfair
competition. The major shortcoming of performing an inadequate balancing of
policy objectives would result in over-deterrence and a criminal EU competition
law, which could lead to an overall excess of consumer benefit or even
competitors protection instead of safeguarding a lively, neutral, and effective
competition process for all market participants.
However, the meaning of distortion with regard to unfair commercial
practices is based on the same requirement for the approximation of laws, which
makes it clear that undistorted competition must be an overall policy objective
for both competition and unfair competition rules. Article 119, however, makes
the same distinction between the Protocols broad requirement of undistorted
competition and free competition as German economic freedom does by
conferring economic rights. Therefore, when a distortion arises within the
meaning of Articles 116 or 117, the courts balancing should be based on
Protocol 27, but should take into account Article 119. Under EU unfair
competition law, solely unfair commercial practices such as other methods than
normal competition should then contribute to the courts balancing of the public
interest in order to maintain undistorted, fair, and effective competition within
the internal market. Otherwise, EU competition law will enforce EU unfair
competition law with a detrimental effect upon undertakings economic freedom
and, ultimately, upon consumers, who are not gaining the desired fair share of
benefits if the safeguarding of the competitive process with free competition and
economic rights fails.

356 Chiri, supra n 297.

103