LAW & ECONOMICS: ABUSE OF DOMINANCE - ECONOMIC ANALYSIS - AS EFFICIENT COMPETITOR TEST

Calibration and consistency in Article 102: Effects-based enforcement after the Intel and Post Danmark judgments

The EU’s 2009 Article 102 Guidelines describe an effects-based approach to enforcing the law against dominant firm abuse. However, recent European Court Judgments have taken a more formalistic approach that relies on the case law. Some prominent critics of the Guidelines have argued that this more formalistic approach provides a better template for realising the Treaty objective of preserving “undistorted competition.” This article examines the economic and policy issues behind this debate with reference to the Judgments in the rebates and pricing cases involving Intel and Post Danmark. It concludes that, whilst the Guidelines are far from perfect, they provide a more coherent and consistent framework for enforcement and that, in contrast, the recent Judgments embody a number of inconsistent and confusing approaches to the underlying economic issues that further complicate the task of compliance with Article 102.

1. The 2009 EU Commission Guidelines on Article 102 enforcement (“the Guidelines”) promised a new effects-based approach to abuse of dominance in EU competition law, and a move away from unworkable form-based conduct rules. [1] In the intervening 7 years, however, a number of Court Judgments have cast doubt on such promise. Notably, in the area of pricing and rebates, ECJ Judgments in the Tomra [2] and Post Danmark I [3] and II [4] cases, and the Judgment of the General Court in the Intel case, [5] appear to have restricted if not suppressed entirely the thinking that seemed to motivate the Guidelines. 2. A number of legal commentators have interpreted these Judgments as a major setback to the effects-based agenda set out in the Guidelines. Notably, Wouter Wils, a Hearing Officer at

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  • RBB Economics (London)

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Derek Ridyard, Calibration and consistency in Article 102: Effects-based enforcement after the Intel and Post Danmark judgments, September 2016, Concurrences Review Nº 3-2016, Art. N° 80734, pp. 29-38

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