By: Pablo Ibañez Colomo (Chilling Competition)
Advocate General Rantos’s Opinion in Servizio Elettrico Nazionale is this month’s highlight. It seems fitting to say a word about it before the year comes to an end. The first post on the Opinion (see here) addressed the general approach to the notion of abuse and the way in which it codified the body of case law that has developed in recent years.
This second post focuses on two specific points addressed by Advocate General Rantos (the Opinion is particularly rich and there are other aspects that might be discussed in the future). The first is the role of actual, observable market developments when assessing potential effects. The second relates to the applicable threshold of effects.
The assessment of potential effects and actual market developments
It has long been established that EU competition law (including Article 102 TFEU) is concerned not only with actual effects but also with potential effects. One could even argue that potential effects are the primary concern, since the fundamental goal of the system is to preserve the competitive process rather than to sanction the exclusion of rivals.
When it comes to the assessment of potential effects, one question inevitably comes to mind: what is the role of actual market developments when evaluating them? If there is evidence that rivals have retained their ability and incentive to compete in spite of the practice, is this evidence relevant when the analysis is prospective in nature?
Advocate General Rantos gives an answer that is not only reasonable but also in line with the case law. Where the analysis is based on the potential effects of a practice, but the latter has been going on for a while, its actual impact is a relevant indicator of the likely consequences further down the line (para 119 of the Opinion).
In other words: the absence of actual effects can lead to the conclusion that the practice is incapable of having a potential impact on competition…