Article 82 Guidelines Missed Opportunities in the Telecoms Sector

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Yvan Desmedt, Alexandre Verheyden, Feb 05, 2009

The telecommunications sector has constituted a key enforcement priority for the Commission, particularly in relation to the application of Article 82 EC. Thus, the Article 82 Guidelines were generally anticipated to reflect relevant Commission’s practice in the field of electronic communications and to integrate the most recent competition law and regulatory case law as appropriate. Commissioner Kroes had indeed indicated that the Article 82 Guidelines did not seek to radically shift policy, but rather “to develop and explain theories of harm on the basis of a sound economic assessment for the most frequent types of abusive behaviour to make it easier to understand our policy, not only as stated in policy papers but also in individual decisions based on Article 82.” However, we find that the Article 82 Guidelines fail to achieve this objective insofar as they: (i) fail to address the assessment of either dominance on multisided markets; (ii) exclude exploitative abuses from the Commission’s apparent priorities; (iii) only partially recognize the impact of exclusive and special rights in liberalized sectors for applying Article 82; and (iv) fail to analyze discriminatory practices. These shortcomings are discussed below, following a short overview of innovative positions taken by administrative authorities and courts in the EU over the past decade in the field of el…

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