The application of article 82 of the EC Treaty to exclusionary abuses : the way ahead

Abstract

Applying Article 82 EC to exclusionary abuses was a controversial topic from the start, since condemning conduct that changed the market structure could amount to condemning competition itself. Fifty years on and the talk is about modernising the approach taken to exclusionary conduct since harming competition is indeed still at stake. The initial controversy as to whether exclusionary conduct should be included within the meaning of Article 82 has now shifted to a debate on how Article 82 should be applied to exclusionary abuses. In such cases, enforcers must strike a very sensitive balance between prohibiting the exclusion of competitors, by dominant firms with the aim of exploiting consumers while allowing dominant firms to compete and possibly also win the 'competitive race'. This dissertation investigates how case-law has seen a tipping of this balance towards per se prohibitions and has left the picture of what constitutes legitimate conduct very hazy for dominant firms. This dissertation further evaluates the Commission's attempt at reviewing this approach through a Discussion Paper on the Reform of Article 82, issued in 2005, in an attempt to adopt a more economics-based coherent approach which prohibits ultimate harm to consumers. A Public Hearing was also held in 2006 and comments were received. This was all welcome. However the content of the Discussion Paper, albeit endorsing a more economics-based approach, failed to convincingly establish a clear difference between conduct that would lead to consumer harm and that which would not. Finally, this dissertation shall conclude that the hope for a successful reform is now in the adoption of Guidelines for Article 82 which take heed of the comments levelled against the Discussion Paper. A true commitment to preventing 'consumer prejudice' as referred to in Article 82(b) will hopefully feature as the for-us of any future Guidelines and pave the way ahead.