Exclusionary conduct in competition law: a consequence-sensitive deontological account

Abstract

ABSTRACT The dominant theoretical approach to the prohibition of exclusionary conduct in competition law distinguishes exclusionary conduct from normal competitive conduct based on their economic outcomes. However, this approach fails to provide a uniform and consistent test for distinguishing the two categories. This article outlines a new account of the wrongness of exclusionary conduct that integrates consequentialist factors within the deontological framework of the moral duty to promote the common good. Exclusionary conduct is wrong because it undermines the role of markets as a salient response to an important social coordination problem in a way that harms the competitive process and social welfare. The prohibition arises from the moral duty to promote the common good in combination with evolved social and economic norms. This approach helps make sense of the distinction between exclusionary conduct and normal competitive behaviour. The article explores and applies this account to the European Union approach to the prohibition of exclusionary conduct under the legal framework provided by art 102 of the Treaty on the Functioning of the European Union.