Some Thoughts on Article 82 Jurisprudence – If the Government Always Wins, Should Private Litigants Win As Well?

Kent Bernard, Aug 13, 2009

If you want to know where you are going, it helps to know where you are. As we see the European Commission moving deeper into limiting what allegedly dominant companies can and cannot do, the question arises whether the same rules being applied in cases brought by the Commission should also apply if and when such cases are brought by private parties. To answer this question, we start with the current law under Article 82. We then take a step back to examine the philosophical underpinnings of the doctrines that are leading to the court decisions, and we then examine whether those underpinnings justify applying the same rules to private party suits. Over 40 years ago, United States Supreme Court Justice Stewart criticized the Court majority’s assertion that its decision in the case before it was consistent with the Court’s precedent, noting that the sole consistency that I can find is that in litigation under Section 7, the Government always wins. The decision of the European Court of Justice in the France Telecom (Wanadoo) case brought that old quote back to mind. To paraphrase Justice Stewart, in litigation under Article 82 the Commission always seems to win. Why, and what that means if the EU moves towards a system of private antitrust litigation, is what we will be exploring below.

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