TRENDS: EFFICIENCY DEFENCE - ABUSE OF DOMINANCE

Efficiency defences in abuse of dominance cases

The existence and application of the so-called "efficiency defence" in Article 102 TFEU has been an issue of serious contention over the last years. The 2009 Guidance Paper gave new impetus to the notion. The articles below provide an EU and a national perspective. The existence, legitimacy and application of the "efficiency defence" are examined through the case law and from an enforcement policy angle. The starting point of each author is different but there are common threads, too.

INTRODUCTION Assimakis KOMNINOS Local Partner, White & Case, Brussels 1. At the time of the adoption by DG Competition of the 2005 Discussion Paper and the 2009 Guidance Paper on exclusionary abuses, the treatment by EU competition law of the so-called “efficiency defence” arose as a topic of great academic and practical importance. It is by no chance that the emergence of this notion had to wait for the advent of the “new economic approach” in Article 102 TFEU. Indeed, as late as 2002, the Commission’s Glossary of Terms used in EU competition law [1] had not a single reference to the term “efficiency,” not to mention “efficiency defence,” although it did speak about practices that were “objectively justified.” 2. Nowadays, the concept of “efficiency defence” is well-accepted and no

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Assimakis Komninos, Ekaterina Rousseva, Christopher Brown, Victoria Mertikopoulou, Gianluca Faella, Antonello Schettino, Efficiency defences in abuse of dominance cases, May 2014, Concurrences Review N° 2-2014, Art. N° 65381, www.concurrences.com

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