Consistency and modernisation of EU competition law : a view from the concept of appreciability

Abstract

The recent developments in the modernisation of the prohibition of abuse of dominance (e.g., Intel) have created the impression that Articles 101 and 102 TFEU and merger control are finally aligned with each other. Against this backdrop, this thesis focuses on appreciability and explores to what extent this statement holds true. To this end, the thesis completes two tasks. It first examines the consistency of EU competition law by taking appreciability as a benchmark and vertical restraints as case study. Once the existence of inconsistencies is confirmed, the thesis tackles the following research question: how to rethink appreciability to repair the consistency of competition law? More concretely, the doctoral dissertation identifies the presence of a category of restrictions of competition that are neither de minimis nor appreciable; as well as the adoption of two different approaches to appreciability by the European Commission and EU courts: an analysisbased and an assumption-based approach. It contends that the coexistence of both approaches undermines the consistency of competition law: under the former there is room for considering some restrictions non-appreciable due to their small impact on competition, whereas under the latter the degree of harm is always assumed to be high. Moreover, the thesis finds that appreciability is not playing a part in the modernisation of EU competition law, which exacerbates the inconsistency of this legal system. To repair the consistency of EU competition law, the thesis proposes a superior policy for appreciability. In doing so, it explores the role of appreciability in competition law, its structure as a rule and a standard, and its position vis-à-vis other standards in the enforcement of competition rules. The thesis suggests combining the analysis-based with a presumption-based approach, which can be adopted on a case-by-case basis depending on the legal provision and type of restriction at issue.