A Commentary on DG Competition’s Discussion Paper

Bill Allan, Apr 01, 2006

DG Competition’s discussion paper appears to signal a departure from the form-based approach articulated most strongly in Michelin II. However, its full significance is limited by the enunciation of a precautionary principle under which abuse is framed to capture any conduct likely to limit entry or expansion and justification is limited to the narrowest plausible extent. While that approach reflects a concern to prevent the erection of artificial entry barriers, it results in rules that undervalue existing competition. That risk is compounded by a narrow approach to market definition and dominance. These problems will only be avoided if the European Commission fully embraces a standard based on a determination that the disputed conduct substantially lessens effective competition in a way that can effectively be remedied by intervention under Article 82 of the EC Treaty.