Hell freezes over : a climate change for assessing exclusionary conduct under article 102 TFEU

Abstract

The ECJ's judgment in Post Danmark A/S v Konkurrencerådet seems to herald new rigour in the application of Article 102 TFEU to exclusionary pricing practices by dominant firms. The judgment clarifies that the core criterion by which to judge exclusionary conduct under Article 102 is its actual or likely effect on competition, and thereby on consumers. The judgment also signals a decision on the part of the ECJ to embrace fundamental concepts advocated in the Commission's Guidance Paper on exclusionary conduct under Article 102, and in doing so contributes to enhanced legal certainty.