Schizophrenia in the Commission’s Article 82 Guidance Paper: Formalism Alongside Increased Recourse to Economic Analysis

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James Killick, Assimakis Komninos, Feb 05, 2009

The publication by the European Commission of its long-awaited Guidance Paper on exclusionary abuses under Article 82 EC was the most important policy development of the second half of 2008. It is certainly positive that the Commission eventually did proceed to publish something. Following the DG-COMP Discussion Paper in December 2005, there were fears that the Commission might not continue with the whole exercise. The Guidance Paper’s ambitions are scaled back compared to the approach when reform of Article 82 EC was first raised in the 2005 Discussion Paper. It relies less on economic and legal jargon, and is, accordingly, a more accessible document. However, 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.