Agree or Disagree, Abuses ‘By Object’ Are a Thing Unless the Case Law Changes

By: Pablo Ibañez Colomo (Chilling Competition)

The story of competition law is, above all, a story of eternal returns. It is a story of well-established doctrines that are progressively eroded until it becomes clear they were right all along and repentant authorities return to them. A story of disdain for economic analysis that is followed by enthusiastic embrace and subsequent abandon in favour of other approaches.

Against this background, I thought it would be fitting to start the blogging year exactly where I left it at the beginning of 2021 (see here). In that post, I explained that the case law distinguishes between abuses ‘by object’ and ‘by effect’. In other words: some behaviour is deemed abusive without it being necessary for the authority or claimant to show that it has an actual or potential impact on competition.

Almost exactly a year later, in this Groundhog Day of sorts, we have gone full circle. The issue has come to the fore again and I find myself writing about it. The Google Shopping judgment is part of the reason why. In a particularly interesting (but wholly inconsequential for the outcome of the case itself), the General Court touches upon the question (see paras 435-437 of the judgment).

Advocate General Rantos’s Opinion in Servizio Elettrico also addresses the point, and goes as far as to claim, uncontroversially, that there is no such thing as a per se abuse in the EU legal order (see para 55 of the Opinion).

So, coming back to the question: are abuses ‘by object’ a thing? There should be no doubt about it, in my view. This said, it makes sense that I spend some time on legal terminology to avoid misunderstandings…

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