The Role of Exclusionary Intent in the Enforcement of Article 102 TFEU

The role to be played by intent evidence in antitrust enforcement has always been a controversial issue. The debate is particularly significant as regards unilateral exclusionary abuses. On one hand, it is argued that intent evidence is irrelevant, insofar as objective standards should determine antitrust liability. On the other hand, intent evidence may assist in informing the analysis of potentially abusive behaviour, and can act as a check against both under and over-enforcement. This article will explore the usage of intent evidence in EU competition law under Article 102 Treaty on the Functioning of the European Union (TFEU). It will be argued that evidence of exclusionary intent is an essential component in the enforcement of certain types of abuses and that its continued usage is desirable, notwithstanding the move towards a more effects-based approach under Article 102. Whereas an effects-based approach seeks to ascertain the likely impact of behaviour by recourse to economic data, intent evidence seeks to establish the likely impact of behaviour by examining the motivation of the undertaking concerned. While different, such approaches are not mutually exclusive and may complement each other. In particular, intent evidence plays a vital and irreplaceable role in disambiguating ambiguous practices which may, by their nature, constitute pro or anti-competitive behaviour depending upon the intent motivating the dominant undertaking in so acting.