Competition Law Remedies: In search of a theory The relation between liability and remedies in the context of Article 102 TFEU
This study examines the application of "discretionary remedialism" to EU competition law, in particular by looking to the enforcement of Article 102 TFEU on abuse of dominant position. ‘Discretionary remedialism’ is the view that courts (or competition authorities) have a discretion to award the "appropriate" remedy in the circumstances of each individual case rather than being limited to specific (perhaps historically determined) remedies for each category of causative events. Tenants of ‘discretionary remedialism’ separate the issue of liability from that of remedy. The paper will oppose this view. It will do that by first examining the relation between the liability and the remedy phases in general. It will then attempt to integrate the issue of discretionary remedialism and the distinction between the liability and remedial phase to the broader debae about the relation between efficiency, distributive justice from one part and corrective justice from the other. It will then examine the importance of ‘discretionary remedialism’ in the context of antitrust, but will also analyse why it is important to limit its effects. This will be done by exploring the objectives pursued by competition law remedies, in order to show that a coherent theory of competition law remedies is incompatible with a sharp dichotomy between liability and remedy. The emergence of a remedial proportionality test in EU competition law demonstrates also the necessary logical connection between the remedy and the liability phase.
The final part will explore if, and how, the remedial proportionality test will operate in the context of an ‘effects-based approach’ under Article 102 TFEU.