Abstract

The discipline of unilateral conduct denounces widespread inconsistencies related to its conceptual foundations. The American side does not recognize exploitation as a form of abusive conduct for the dominant firm: exploitation, in the vein of excessive pricing, is no issue in the US antitrust environment and the opinion issued by the Supreme Court in Trinko (2005) makes crystal clear that setting a more-than-competitive price not only escapes prohibition, but is the award reserved for the winners of the struggle in the market arena. Article 82 (a) of the EC Treaty forbids the imposition of unfair purchase or selling prices or other unfair trading conditions; but it is no less evident that the case law has greatly emphasized exclusionary effects, with exploitative effects appearing to be little more than a sideshow. This practical emasculation of the relevant discipline makes little sense either in economic or legal terms, and leaves the overall conceptual picture in a state of complete disarray Its implications contribute to further dismembering any attempt to come to grips with some sort of coherent enforcement.