Extra! Extra! There is a single (unified) framework for exclusionary abuses under Article 102 of the Treaty on the Functioning of the European Union (“TFEU”) consisting of a single standard of proof and a single legal test: the enforcer/claimant needs to establish that the plausible objective rationale (considering all the relevant circumstances) behind a dominant company’s conduct [standard of proof] is for the dominant company to derive an advantage (i) through means that equally efficient competitors cannot replicate to derive a comparable advantage, including means that are specifically designed to foreclose equally efficient competitors [“competition on the merits”/artificiality limb of the test]; and (ii) that equally efficient competitors cannot offset by other means, so they would be potentially foreclosed as a result [potential foreclosure effects/“capability to foreclose” limb of the test]; unless the dominant company proves that the advantage is either replicable or offsetable (as a matter of procedure or substance depending on the interpretation of C-413/14 P Intel), or provides an alternative explanation or an objective justification. This is the subject of my paper Quantum Antitrust – A Unified Exclusionary Abuse Theory that has just been published in open-access form in the IIC – International Review of Intellectual Property and Competition Law.
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