Sutarties dėl Europos Sąjungos veikimo 102 straipsnio reformos įtaka objektyvaus pateisinimo sampratos raidai ; The impact of the reform of article 102 of the treaty on the European Union functioning in the evolution of the concept of objective justification

Abstract

Meeting the competition's argument, though not incorporated into the Guidelines, in the author's opinion should be considered as one of the objective justification types, since, first, it was approved in the case-law, second, meeting competition may justify pricing and nonpricing abuses of dominant position if the undertaking is seeking to protect its own interests, and not to eliminate the competitors, doing so in proportion to the threat. The conditions for the use of meeting competition arguments are unreasonably narrowed in the Discussion paper and shift a difficult burden of proof on the undertaking concerned. The Commission's reform extended the concept of objective justification by officially adding to it the concept of efficiencies, which, until the reform, had an unclear status amongst the other types of objective justification—the objective necessity and meeting competition. However, the conditions for proving efficiencies are very strict and almost impossible to prove—they shift to the undertaking not only the evidential burden of proof, but also a part of the legal burden of proof, which shall be an exclusive competence of the Commission or other subject alleging the infringement of Article 102. In regard to this point, the conditions for proving the efficiencies, as specified in the Guidelines, shall be revised by the Commission.