
Contents
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A. Introduction A. Introduction
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B. The search for a single test B. The search for a single test
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C. Intent C. Intent
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(1) Origins of the test (1) Origins of the test
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(2) Defining intent (2) Defining intent
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(3) Naked abuse as a test of intent (3) Naked abuse as a test of intent
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(4) The test of intent beyond naked abuse and its limitations (4) The test of intent beyond naked abuse and its limitations
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D. The no economic sense test D. The no economic sense test
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E. The as efficient competitor test E. The as efficient competitor test
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(1) Consistency of the as efficient competitor test with fundamental principles (1) Consistency of the as efficient competitor test with fundamental principles
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(2) Under-inclusiveness of the as efficient competitor test (2) Under-inclusiveness of the as efficient competitor test
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(3) Over-inclusiveness of the as efficient competitor test (3) Over-inclusiveness of the as efficient competitor test
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(4) The problem of multi-product firms (4) The problem of multi-product firms
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(5) Extension of the as efficient competitor test to abusive discrimination (5) Extension of the as efficient competitor test to abusive discrimination
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(a) The problem (a) The problem
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(b) General welfare effects of discrimination (b) General welfare effects of discrimination
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(c) Competitive implications of discrimination on intermediate markets (c) Competitive implications of discrimination on intermediate markets
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(d) The market-distorting discrimination test (d) The market-distorting discrimination test
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F. The consumer harm test F. The consumer harm test
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(1) General formulations of the consumer harm test (1) General formulations of the consumer harm test
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(2) Advantages of the consumer harm test (2) Advantages of the consumer harm test
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(3) Problems of over- and under-enforcement associated with the consumer harm test (3) Problems of over- and under-enforcement associated with the consumer harm test
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(4) Administrability of the consumer harm test (4) Administrability of the consumer harm test
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(5) Exploitative abuses and consumer harm (5) Exploitative abuses and consumer harm
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G. Conclusion G. Conclusion
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3 The Design of the Optimal Abuse Tests
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Published:December 2011
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Abstract
The objective of competition law is to maximise long-term social welfare. However, an abuse test that required proof that the conduct under review reduces long-term social welfare would lack both the qualities that a legal test should possess: certainty and administrability. It is therefore necessary to frame a test, or several tests, that, by relying on elements other than direct proof that a reduction of competitive pressure on the dominant firm has a negative impact on long-term social welfare, are capable of distinguishing conduct that is harmful to competition from precompetitive behaviour. This chapter discusses the possible abuse tests applicable to exclusionary, exploitative, and discriminatory abuses. It starts by asking the fundamental question of whether, from a normative standpoint, there should be one abuse test. It then goes on to examine the tests that have emerged in the literature or in the case law. The tests are discussed in the following order: intent, which also includes naked exclusion, naked exploitation, and naked discrimination; no economic sense; as efficient competitor, which also includes the test for abusive discrimination; and consumer harm, covering both exclusionary and exploitative abuses. The conclusion of this chapter sets out the test that, from a normative point of view, should apply to exclusionary, exploitative, and discriminatory conduct.
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