Abuse of dominance and sustainability: Using article 102 TFEU as a sword against unsustainable conduct

Abstract

Article 102 of the Treaty on the Functioning of the European Union ("TFEU") contains the prohibition of the abuse of a dominant position. This thesis aims to find out whether article 102 TFEU can and should be used to fight unsustainable business conduct.

The thesis starts with setting out a moral framework which asserts whether article 102 TFEU should be used to attack unsustainable business conduct. It comes to the conclusion that it should, based on an assessment of the goals of competition law based on "constitutional" article of the Treaty of the European Union and the Treaty on the Functioning of the European Union.

Following this normative framework, the thesis assesses whether there is currently room for article 102 TFEU to be used to attack unsustainable conduct. It finds that there is no or almost no room for this. This conclusion means that the reality of article 102 TFEU does not fall in line with the normative framework.

After asserting that the reality of article 102 TFEU does not fall in line with the normative framework set out at the start, this thesis suggest multiple ways to use article 102 TFEU to attack unsustainable conduct. A four step staircase framework is devised with each step going further in allowing article 102 TFEU to attack unsustainable conduct.