Exclusionary conduct in competition law: a consequence- sensitive deontological account Barbora Jedličková a and Jonathan Crowe b a School of Law, University of Queensland, Brisbane, Australia; b Faculty of Law, Bond University, Gold Coast, Australia ABSTRACT The dominant theoretical approach to the prohibition of exclusionary conduct in competition law distinguishes exclusionary conduct from normal competitive conduct based on their economic outcomes. However, this approach fails to provide a uniform and consistent test for distinguishing the two categories. This article outlines a new account of the wrongness of exclusionary conduct that integrates consequentialist factors within the deontological framework of the moral duty to promote the common good. Exclusionary conduct is wrong because it undermines the role of markets as a salient response to an important social coordination problem in a way that harms the competitive process and social welfare. The prohibition arises from the moral duty to promote the common good in combination with evolved social and economic norms. This approach helps make sense of the distinction between exclusionary conduct and normal competitive behaviour. The article explores and applies this account to the European Union approach to the prohibition of exclusionary conduct under the legal framework provided by art 102 of the Treaty on the Functioning of the European Union. KEYWORDS Exclusionary conduct; competition law; common good; coordination problems; welfare economics; economic markets Introduction Exclusionary conduct is behaviour by an entity with significant market power which, by using restrictive rather than competitive means, excludes or restricts competitors— including future competitors—from competing in the relevant market. 1 A central problem confronting the law in this area concerns the difficulty of distinguishing exclu- sionary conduct, on the one hand, from competitive conduct, on the other. The primary effect of exclusionary conduct is to eliminate competitors or to restrict their role in the market. However, many common forms of competitive conduct can have similar effects. For example, innovative or efficient business practices can remove less efficient compe- titors from the market, but these are clearly not forms of exclusionary conduct. The © 2020 Informa UK Limited, trading as Taylor & Francis Group CONTACT Barbora Jedličková b.jedlickova@law.uq.edu.au 1 Exclusionary conduct is prohibited by competition law in numerous jurisdictions, although the precise terminology differs. For instance, art 102 of the Treaty on the Functioning of the European Union (TFEU) refers to ‘[a]ny abuse by one or more undertakings of a dominant position within the common market or in a substantial part of it’ (emphasis added). Section 2 of the United States (US) Sherman Act 1892, by contrast, refers to ‘monopolization’, while s 46 of the Australian Competition and Consumer Act 2010 (Cth) uses the heading ‘[m]isuse of market power’. JURISPRUDENCE 2021, VOL. 12, NO. 2, 123–150 https://doi.org/10.1080/20403313.2020.1844981