Causation and counterfactual analysis in abuse of dominance cases - lessons from the General Court’s Qualcomm ruling

Deutscher, Elias (2023) Causation and counterfactual analysis in abuse of dominance cases - lessons from the General Court’s Qualcomm ruling. European Competition Journal, 19 (3). pp. 481-521. ISSN 1744-1056

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Abstract

Counterfactual analysis, which compares the competitive situation prevailing with and without the allegedly abusive behaviour, is nowadays regarded the lynchpin of an effects-based approach to the analysis of dominant firm conduct under Article 102 TFEU. This article draws on the recent Qualcomm ruling by the General Court of the European Union to critically reflect on the use and requirement of counterfactual analysis in abuse of dominance cases. It argues that Qualcomm offers two lessons on the role of the counterfactual analysis in modern competition law. First, it shows that counterfactual analysis is vulnerable to under-inclusiveness and type II errors when it ignores the problem of concurrent causes of foreclosure effects, disregards standard economic analysis of exclusivity rebates, and remains oblivious to dynamic competition. Second, Qualcomm sheds light on the intricate relationship between the counterfactual analysis and the requisite standard of harm for finding anticompetitive effects under Article 102 TFEU. In limiting the relevant counterfactual scenarios to a very narrow set of actual or nearby likely worlds, Qualcomm is but the last indication of a much more profound transformation of Article 102 TFEU: the transition from a capability to a balance of probabilities or beyond reasonable doubt standard of harm.

Item Type:	Article
Faculty \ School:	Faculty of Social Sciences > School of Law
UEA Research Groups:	Faculty of Social Sciences > Research Centres > Centre for Competition Policy Faculty of Social Sciences > Research Groups > Competition, Markets and Regulation Faculty of Social Sciences > Research Groups > Media, Information Technology and Intellectual Property Law
Related URLs:	https://www.tandfonline.com/doi/full/10....
Depositing User:	LivePure Connector
Date Deposited:	07 Jul 2023 09:30
Last Modified:	01 Aug 2023 13:31
URI:	https://ueaeprints.uea.ac.uk/id/eprint/92572
DOI:	10.1080/17441056.2023.2219440

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