Abstract
• There is not a unique legal test in EU competition law. There is conduct that is prima facie unlawful irrespective of its effects, and conduct that is lawful. In between, some practices are prohibited where actual or likely effects can be shown. • This paper seeks to map the various tests by which conduct is assessed under Articles 101 and 102 TFEU and to explain the rationale and operation in practice of these tests. • The analysis explains, inter alia, how firms can rebut the presumption that practices are capable of having restrictive effects in light of the relevant economic and legal context of which they are a part. • The paper also explains why indispensability is an element of the legal test in the context of some practices (for instance, refusals to deal) but not others (for instance, 'margin squeeze' and tying conduct). In this sense, it is submitted that, as the law stands, the nature of the remedy determines the application of one test or the other.
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