Quantum Antitrust – A Unified Exclusionary Abuse Theory

Abstract

Now that the judgments in Servizio Elettrico Nazionale and Unilever have made sense of previous case-law, a unified analytical framework can be predicated for all exclusionary abuses. It is made up of two limbs (artificiality/conduct deviating from competition on the merits and potential exclusionary effect/capability of foreclosing). The two limbs are two sides of the same coin, which consists of ascertaining whether the plausible rationale (in the sense of nature and economy) behind a dominant company’s conduct is to derive an advantage that equally efficient competitors cannot either derive by doing the same (first limb–artificiality) or offset by other means (second limb–potential effect). This exclusionary rationale, which is a cognitive state in the dominant company’s mind rather than an ontological reality, is objectivised by holistically judging the dominant company’s conduct against the backdrop of the relative efficiency of its competitors, which is the link between both limbs: if the inherent features of the company’s conduct and all the relevant circumstances surrounding it allow equally efficient competitors to either derive a similar advantage or to defeat its exclusionary effect by some other means, the conduct does not make anticompetitive sense (exclusion is not its plausible rationale). Owing to the very Darwinian nature of competition law, relative efficiency is the common “quantum” and, therefore, a useful yardstick for abuse from the historical, legal, teleological and practical perspectives, as well as from the points of view of causality and reality. Finally, plausibility would be the single standard of proof that could be rebutted by disproving either of the two limbs (in an Intel II-like fashion), either by providing an alternative non-exclusionary explanation that breaks the casual link or by putting forward an objective justification. All other tests and standards merely reflect the extent to which either the artificiality or the potential effects of the conduct can be presumed based on economic judgement or experience (as happened in merger control following CK Telecoms)–thus reconciling per se rules, consisting of an Art. 101-like cursory analysis, with a more economic approach.