Article 82 EC : is it time for reform?

Abstract

Article 82 EC on the abuse of dominance represents one of the cornerstones of EC competition law. However, notwithstanding the significant developments which have occurred over recent years, the Commission's Article 82 policy has remained untouched by the modernization process which has been successfully concluded in other major areas such as those of Article 81 and merger control. The lack of modernization has sparked off significant discussion on the need to bring the application of Article 82 in line with the economics based approach adopted in other fields of competition policy. This debate has been further fuelled by the Commission's announcement of its intention to review its Article 82 policy. The majority of contributions criticize the current form-based policy and call for a shift towards an effects-based approach. It is argued that the current approach imposes too onerous a burden on dominant undertakings. In fact, an analysis of the Commission's decisional practice, as generally endorsed by the European Courts indicates that the current abuse of dominance policy 1s excessively interventionist and is generally applied in favour of the protection of competitors rather than competition itself This interventionist approach is particularly evident upon a comparison of Article 82 enforcement with the more liberal antitrust policy pursued in the United States. At the time of writing of this work, the review process is still underway and there are no publicly available documents stating the Commission's official position. If the review is completed successfully, the Commission is expected to issue guidelines which will bring much-needed clarification in an area where there is little policy guidance, particularly now in the context of the decentralized enforcement system whereby dominant undertakings will be increasingly dependant on self-assessment of their competitive strategies.