Creative Commons

This dissertation considers that the prohibition of anti-competitive unilateral conduct by dominant undertakings is not absolute, but allows for derogation. The ECJ has accepted and used the objective justification plea in order to legitimate prima facie abusive conducts that fulfill the demanded requirements. This thesis contains a detailed examination of the concept of ‘objective justification’, focusing in particular on its scope and the applicable legal conditions. An analysis also of the notions of abuse and dominance is included, because their precise definition is important for the better understanding of the term objective justification. This thesis submits that is very important to tackle with the formalistic approach and adopt the effect- based approach in the examination of Article 102 TFEU and of objective justifications. There is the need for a clear definition regarding the term objective justification, which will enhance the legal certainty. As far as the subdivision of the different types of objective justifications is concerned, this thesis accepts the following subdivision of objective justifications: companies with market power should be allowed to engage in (i) legitimate business behaviour (either as part of their commercial freedom or in case of objective necessity), (ii) efficient conduct with a positive welfare effect and (ii) conduct that promotes a relevant public interest. Finally, this thesis considers whether environmental protection factors must be approved as an objective justification under Article 102 TFEU and whether they play any role in European Competition Law in general, and whether they should play a role.