The Role of Intent in the EU Case Law on Abuse of Dominance

This article examines the role of intent in the EU case law on abuse of dominance. It demonstrates that the case law mainly uses “subjective intent” and that the use of intent is not limited to predatory pricing, not least because “intent” and “object” are used synonymously. The article argues that the thus-far developed use of intent within the substantive assessment under art.102 TFEU reduces legal certainty and increases the risk of decisional errors with negative welfare implications. Such an approach also conflicts with the modernisation of art.102 TFEU, a process aiming to adopt a more economic, effects-based approach. The article argues that intent should not be used as part of the substantive legal test for establishing abuse.