A philosophical : legal analysis of Article 102 of the Treaty on the Functioning of the European Union and Article 9 of the Maltese Competition Act

Abstract

The first chapter of this study will seek to examine and discuss general concepts which are embedded within the general provisions of law, yet the law never attempts to define such concepts, which in reality have been troubling the curious minded since the creation of the so-called ‘society’. Consequently, to further shed light on the matter, these concepts will be analysed from a philosophical perspective with particular focus on theories proposed by various philosophers. The second chapter of this study will then seek to analyse Article 102 of the Treaty on the Functioning of the European Union (TFEU) and Article 9 of the Maltese Competition Act (CA) by first discussing the context within which the mentioned provisions exist; that of competition law. After discussing the context, meaning and the involved core principles, this section will then seek to analyse Article 102 of the TFEU and the concept of the ‘abuse of a dominant position’, whilst also placing particular focus on the notions of ‘refusal to supply’ and the ‘essential facilities doctrine’. Additionally, a comparative exercise will also be undertaken throughout this chapter by analysing the manner in which particular jurisdictions have interpreted Art.102 of the TFEU and its principles. After having analysed the classical philosophical concepts in the first chapter and after discussing the core concepts and objectives of competition and the notion of ‘abuse of a dominant position’ in the second chapter, the third chapter of this study will first begin by attempting to link the philosophical theories and concepts with today’s contemporary legal system, particularly focusing on bringing these concepts within the realm of Competition Law to bridge the gap between classical thought and modern legal evolution. Additionally, this chapter will seek to determine how relevant and applicable, if any, do the classical concepts remain, particularly within the competitive scenario.