To Abuse, or not to Abuse: Discrimination between Consumers

Abstract

This paper questions whether discrimination between consumers by a dominant undertaking can and should constitute an abuse of a dominant position under Article 82EC. By finding that it can, the paper challenges the traditional interpretation of the discrimination ban under that provision, namely that discrimination constitutes abuse only when directed against the intermediate customers of the dominant undertaking. As such, the paper seeks to clarify the scope of Article 82EC as regards discrimination and elaborate on whether discrimination between consumers should be abusive. This is done from a law and economic perspective, in order to put forward a proposal to ensure that competition law does not prohibit discrimination where economics finds it potentially welfare enhancing.