Abstract

In European competition law it has been considered that ‘unfair prices’, as it is used in Article 102(a) TFEU, should not only include exclusionary high prices, but also prices which, without reinforcing it, represent a mere exercise of the market power legitimately acquired by the dominant firm. This chapter analyses the case law of the European Court of Justice on these ‘exploitative prices’ and suggests that, given the legal uncertainty of the prohibition, its economic and institutional flaws and the conceptual contradictions that it entails, regulating the prices of monopolists should be done ex ante and left to government or sector-specific regulators. The prohibition of ‘unfair prices’ should be interpreted by competition authorities as referring merely to exclusionary prices.