The Tests of Intent
This chapter discusses the naked abuse test in EU law and then examines the role that intent plays as an element of the test in predation, abuse of rights, and tying. The relevance of evidence of intent is discussed next. It concludes that, contrary to the received wisdom, intent plays an important role in determining whether conduct runs counter to the purpose of Article 102. Abuse, however, remains an objective concept because evidence of subjective intent is never sufficient, by itself, to establish a prima facie case of abuse. The conduct must be capable in its market context of causing competitive harm. Furthermore, intent can be inferred from purely objective factors so that direct proof of subjective intent is not necessary. With these important qualifications, intent plays three roles in shaping the abuse tests under Article 102.
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