Legitimate aim & suitability560 Clause Samples

Legitimate aim & suitability560. It is unclear what kind of legitimate aims a dominant undertaking may invoke. An aim should in any case be considered legitimate if it seeks to achieve a goal that is consistent with one of the objectives of EU competition law – this will be an attractive route for a public interest plea, for example if the conduct benefits environmental protection.561 More generally, a legitimate aim should refer to benefits that accrue wider than simply to the dominant firm itself. This is particularly the case in terms of the justifications that call for a balancing test, namely the efficiency plea and the public interest plea. As the finding of a prima facie abuse connotes that the conduct under review has the potential to harm competition; a justification then requires a wider benefit to the market.562 559 See, differently, ▇. ▇▇▇▇▇▇▇▇, ▇. ▇▇▇▇▇▇ & ▇. ▇▇▇▇▇▇, ‘Predatory Conduct’, in: ▇.▇. ▇▇▇▇▇▇▇▇ & ▇. ▇▇▇▇▇▇▇▇ 2014 (supra note 331, at 215). They suggest that objective justification always requires a full examination of suitability, necessity and proportionality. 560 For a discussion of the relevance of 'legitimate aim', reasonableness and proportionality, see ▇▇▇▇▇▇▇▇▇▇ 2005, 561 See e.g the objectives mentioned in supra note 523 and 524. See also Kingston (2009, supra note 516, at 210), who argues that a dominant firm that relies on environmental benefits of its conduct should be able to meet the suitability test. 562 Case T-­‐66/01 ICI v Commission [2010] ECR II-­‐2631, para 306: ‘the desire to maintain or increase production capacity is not an objective justification to allow an undertaking to act independently of Article [102 TFEU]’. I believe that the General Court could not have made such a sweeping statement if the dominant firm would have relied more heavily on the wider efficiency benefits of its conduct. In my opinion, the condition of a legitimate aim should not be strictly enforced vis-­‐à-­‐vis legitimate business conduct. Such a justification implies that the dominant undertaking is simply making use of its commercial freedom. Within the boundaries of ‘legitimate business conduct’, the dominant firm may indeed be led by a wish to pursue its own interests,563 rather than a more ‘objective’ benefit to the market at large. At the same time, such a plea is more likely to be persuasive if the dominant firm succeeds in showing the wider benefits of its conduct: would markets be functioning better if all market participants exhibit the same conduct? For exampl...