Article 102 TFEU as a tool for market regulation : 'excessive enforcement' against 'excessive prices' in the new EU member states and candidate countries

Abstract

Contrary to the enforcement practice of the EU Commission, the NCAs of the new EU Member States and candidate countries have actively enforced Article 102 TFEU against excessive pricing, focusing on abuses in network industries and in economic sectors where the state has granted exclusive rights to private undertakings. In the absence of any EU guidance and scarce judicial review, the NCAs of these countries have not been consistent in applying the substantive standards and remedies in excessive pricing cases. The paper suggests that in order to guide the NCAs and thus ensure the harmonised application of EU competition law, the EU Commission should supplement its 2009 guidance paper on exclusionary practices with the guidelines on exploitative abuses.