Applying Normative Theories in EU Competition Law: Exploring Article 102 TFEU

Stavros S. Makris

Abstract


The present study involves an analysis of the two main normative approaches and intellectual traditions in competition law: the consequentialist and the deontological. The aim is to evaluate their merit in the application of positive law. Especially, this paper examines whether the traditional approaches offer a full account of the underpinning rationale of Article 102 TFEU and whether CJEU jurisprudence reflects a single intellectual tradition. Furthermore, three main legal tests are brought under scrutiny. These legal tests are invoked by the CJEU, in order to determine whether an infringement of Article 102 has occurred. The tests are associated with the abovementioned normative approaches. The scrutiny of the tests seeks to demonstrate the advantages and disadvantages of each normative approach in specific settings. The argument presented by the current analysis is that the two main normative approaches attempt to be holistic and reduce competition law to a single objective or goal. This produces serious shortcomings. Thus, it is preferable to adopt a value pluralistic normative theory aiming at creating a framework, which accommodates both consequentialist and deontological reasoning, when it is objectively justified. In terms of methodology, the argument is unravelled in a top-down method: first, it is presented on an abstract, theoretical level (Part C) and second, the rationale and application of Article 102 are examined so as to assess the general assumptions made in the first part (Parts D and E).

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