LAW & ECONOMICS: ARTICLE 82 EC - EFFECTS-BASED APPROACH - EXCLUSIONARY EFFECTS - PER SE APPROACH - RULE OF REASON - LEGAL UNCERTAINTY - EXCLUSIONARY CONDUCT - ANTICOMPETITIVE FORECLOSURE - AMERICAN AIRLINES PREDATORY CASE

Implementing an effects-based approach under Article 82 EC

Introduction 1. The debate on whether to and how to reform Article 82 has been raging for some time now. The Article 82 Discussion Paper published in December 2005 (re)launched the debate on the objectives of Article 82 (i.e. the protection of the process of competition rather than competitors) and suggested a number of rules to disentangle pro-competitive conduct from anti-competitive conduct for a number of practices (such as predation, rebates, etc...) In the context of the ongoing thinking about the principles and rules that should underpin the application of Article 82, this paper discusses the implementation of an effects-based approach to assess the exclusionary effects of unilateral conduct by dominant firms. The approach focuses on identifying the relevant criteria to take

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Penelope Papandropoulos, Implementing an effects-based approach under Article 82 EC, February 2008, Concurrences Review N° 1-2008, Art. N° 15434, www.concurrences.com

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