Some Critical Comments on the Commission’s Guidance Paper on Art. 82 EC

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Yannis Katsoulacos, Feb 05, 2009

The Paper, which was preceded by the 2005 DG-COMP Staff Discussion Paper (“DP”) on reforming decisional procedures for Art. 82 EC exclusionary conduct by dominant firms, was particularly needed as the DP, along with a number of recent (sometimes controversial) decisions, had established the Commission’s intention to apply an economics- or effects-based approach to its assessment. But, up to now, there have not been any clear formal guidelines concerning the Commission’s exact objectives and the legal standards to be applied in enforcement. 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.

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