The notion of abuse: cues from the Italian FBA Amazon case

section 2 briefl y describes the facts of the FBA Amazon case. Section 3 highlights the passages of the decision in which the ICA gives Amazon ’ s conduct diff erent legal characterisations, and we analyse the eff ects of this approach and what makes it legitimate. In section 4 we then discuss and refute a fi rst interpretative hypothesis that qualifying Amazon ’ s conduct as selfpreferencing is independent of any other possible qualifi cation of Amazon ’ s conduct as exclusionary and anticompetitive. In section 5 this is countered with the second interpretative hypothesis that the diff erent classes of exclusionary conduct which the ICA identifi ed in Amazon ’ s behaviour – ie tying in, refusal to deal, and possibly self-preferencing – are autonomous legal characterisations independent of one another. We repudiates this conjecture, and fi nally in section 6 we focus on the interpretative hypothesis that indeed legitimises the FBA Amazon decision: the only legal characterisation that matters in considering exclusionary conduct abusive is the one based on its actual and potential eff ects. In section 7 the role that requirements such as coercion and essentiality should play if the notion of abuse were truly eff ects-based is analysed. Section 8 concludes.