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Title: Intent in EU competition law : the judical assessment of anti-competitive strategies
Author: Costa-Cabral, Francisco
ISNI:       0000 0004 7656 0207
Awarding Body: King's College London
Current Institution: King's College London (University of London)
Date of Award: 2014
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This research will investigate whether intent plays a role in the application of Articles 101 and 102 TFEU and, if so, whether such role is subordinate to effects or has an autonomous normative character. The methodology for answering this question will start by defining intent under EU competition law. It will be argued that actions by undertakings are interpreted as those of rational agents. This will show that the notion of ‘subjective intent’ and its separation from objective behaviour are misguided. The role of intent will then be analysed with reference to EU competition law goals. Insofar as those goals are understood as purely consequentialist, namely promoting or preventing certain effects, intent can only be used as a proxy for such effects. However, EU competition law will be shown to also apply non-consequentialist moral judgments. Such judgments are the source of the autonomous normative value of intent. That autonomous normative value will then be described with reference to the case law, namely the notions behind the different forms of collusion, restriction of competition, and abuse of dominance. It will be seen that the normative root of anti-competitive behaviour is based on intent, insofar as collusion and abuse represent intent which is potentially offensive to EU competition law principles. Infringements of Articles 101 and 102 further require the application of intent or effects-based tests, represented in the alternative between restrictions by object or effect and in the different types of abuse. Thus, it will be discussed how the doctrinal emphasis on effects has failed to explain significant sections of the case law. It will be concluded that the use of intent is indicative of the normative character of EU competition law, namely a stable judicial system based on principles which conciliates moral intuitions with the paradigms of perfect competition.
Supervisor: Townley, Christopher Paul ; Whish, Richard Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID:  DOI: Not available