In this issue:
Analyzing the Article 82 Guidance Paper
Leveraging Non-Contestability: Exclusive Dealing and Rebates under the Commission’s Article 82 Guidance
In this short article I propose initially to summarize, in the most succinct way I can, the EC approach to rebates and exclusive dealing, and the DOJ approach.
When laying down the factors that it will assess when considering whether to initiate an enforcement proceeding, however, the Guidance reveals greater readiness on the part of the Commission to find a violation by a market-dominating firm than that reflected in a comparable report recently released by the U.S. Department of Justice (“DOJ”) on its policies regarding the same kinds of unilateral conduct (the “Report”)
Article 82 Guidance: A Closer Look at the Analytical Framework and the Paper’s Likely Impact on European Enforcement Practice
The paper reviews the Guidance Paper’s general approach to dominance and anticompetitive foreclosure (Section 1) and assesses its likely impact on future Article 82 enforcement (Section 2).
The Commission’s predation analysis thus focuses on economic sacrifice and anticompetitive foreclosure. While the dominant company’s ability to benefit from its sacrifice is mentioned as key to establishing consumer harm, the Guidance stops short of recognizing the possibility to recoup losses as part of the test for predation.
The fact that the Paper “outlines a general framework that the Commission will apply to assess allegedly abusive conduct” under A rt. 82 EC is, in principle, very welcome. However, a number of important shortcomings severely limit, in our view, the potential value of the Paper.
Schizophrenia in the Commission’s Article 82 Guidance Paper: Formalism Alongside Increased Recourse to Economic Analysis
As explored in more detail below, there is an intellectual incoherence at the heart of the Guidance Paper: the formalism of the past coexists with a more economics-based analysis. This contradiction prevents the Paper from successfully modernizing the enforcement of Article 82 EC and taking the debate forwards.
Within the space of a few months, two pre-eminent competition authorities issued widely publicized reports on unilateral conduct, one of the hotly debated topics in modern competition law…with these reports, have the two authorities laid down a marker for how unilateral conduct cases will be assessed in years to come?
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.
Commission Guidance Paper on the Application of Art. 82: A Step Towards Modernization or A Step Away?
One could argue that the present Communication, instead of facilitating the application of Article 82 and promoting its uniform application by NCAs, could make the application of Article 82 more complicated than before and bring back the arguments against the decentralized enforcement of Community Competition Law.