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This article examines the meaning and contemporary relevance of the notion of competition on the merits in Article 102 TFEU case law. It also considers whether a finding of abuse presupposes that a practice is "abnormal" or amounts to a "wrongful act". The analysis identifies friction between the old and the most recent case law. This friction was exposed in Servizio Elettrico Nazionale. Seminal rulings such as Hoffmann-La Roche, where the notion of competition on the merits was introduced, are grounded on the assumption that it is possible to distinguish, ex ante and in the abstract, between lawful and unlawful conduct. The case law that followed moved away from these ideas and clarified that whether or not a practice amounts to an abuse is typically a context-dependent inquiry.Against this background, the article provides a structure that reconciles the old and the newstrands of case law and shows that there is a place for competition on the merits within Article 102TFEU.
Competition on the merits, Article 102 TFEU, unlawful conduct, abuse of dominant position

The interpretation of Article 102 TFEU by the EU courts has given rise to considerable controversy in the past decade. However, it is not always understood properly. The purpose of this contribution is to uncover the rationale underpinning the case law on exclusionary practices and to provide a legal perspective on ongoing debates. An analysis of the case law reveals that some practices are deemed prima facie abusive while others are only subject to Article 102 TFEU insofar as they are likely to have an anticompetitive effect. This difference mirrors the object/effect dichotomy that is observed in the context of Article 101 TFEU. The criteria used to draw the line between abuses "by object" and "by effect" are also the same. Against this background, it appears that the "frictions" observed in the case law can be understood and addressed following the principles sketched by the ECJ in Cartes Bancaires.

The fact that an integrated dominant firm deals on more favourable conditions with its affiliated divisions may be abusive within the meaning of Article 102 TFEU. It is not clear when and why this is the case. It has sometimes been suggested that, as a rule, dominant firms are not entitled to favour their own activities over those of rivals. This piece shows that there is no such thing as a non-discrimination rule applying across the board, which, if anything, would run counter to the logic and purpose of competition law. A case-by-case assessment is thus justified. There are compelling reasons to expand to exclusionary discrimination the principles set out in the Guidance Paper 2008 for the assessment of refusals to deal and "margin squeeze" abuses.

EU competition policy has undergone fundamental transformations over the past 20 years. The changes observed are substantive, procedural and institutional in nature. Two decades ago, EU competition policy was enforced centrally by the Commission in a way that is probably best described as traditional administrative law-making. Policy was formulated by means of formal decisions adopted in individual cases and by legislative instruments regulating firm behaviour in detail. Following the adoption of Regulation 1/2003, and as a result of the use of economic analysis, the enforcement landscape is more diverse and decentralized. National competition authorities have emerged as key players in the field (a trend that is also observed in other fields of EU economic regulation, including energy and electronic communications). Individual decisions are now crucially complemented by soft law instruments, the use of which started in the 1990s and which now permeate the whole discipline, and by negotiated procedures.

In the Meca Medina and Piau cases, the European Court of First Instance had to deal for the first time with the application of EC Treaty provisions to sports bodies' rules. The first of these two cases concerned anti-doping rules adopted by the IOC and the second one concerned FIFA regulations on players' agents. According to case-law of the European Court of Justice, rules 'of purely sporting interest' do not fall within the scope of the EC Treaty. However, an overview of the relevant judgments shows that the test adopted since Walrave to assess the 'purely sporting' nature of such rules is not fully clear and has not always been applied in a consistent way, in particular after Bosman. The Meca Medina case, in which the European Court of First Instance has applied the test in a slightly different manner, opens the door to substantial simplification of future case-law. On the other hand, the European Court of First Instance has also taken the view that the test, which had only been applied up to now by the European Court of Justice to EC Treaty rules on free movement of workers and free provision of services, extends also to the rules on competition. Piau, delivered by the European Court of First Instance some months later, has confirmed the confusion that may derive from traditional case-law and has shown the risks that may derive from the adoption of divergent decisions within the European judicial system.