Les stratégies d’éviction non tarifaires : refus et discriminations à l’accès, exclusivité

Law & Economics Workshop with Frédéric Jenny (OECD), in partnership with the Autorité de la concurrence, Magenta and Charles River Associate.

Frédéric Jenny

Among eviction strategies, non-tariff strategies are not the most commonly talked about. There are many of them, but we will focus on access denials and discrimination on the one hand, and exclusivity on the other. Generally speaking, abuses of dominant position are the subject on which there is the least convergence within the OECD. The Assistant Attorney General in charge of US antitrust policy, William Baer, has recently called for this problem to be remedied. Rethinking the issue of non-tariff eviction strategies can help in this regard, by asking whether an effects-based approach is appropriate. Promoted by the European Commission, this effects-based approach has met with a certain reluctance on the part of supervisory courts, which prefer to use more formal criteria (purpose, potential effects). What is the situation in France? Furthermore, if one wishes to take effects into account, how can one distinguish between the effects of foreclosure of a strategy of a dominant undertaking on a competitor and the effects of this strategy on competition? Another question: has the prohibition of discrimination not been used in France to deal with non-price exclusionary practices in order to circumvent the restrictive case law of the CJEU resulting from the Bronner ruling on refusals of access? Many other questions also deserve to be examined. What are the criteria for defining exclusion in France? How are former public monopolies treated from the point of view of eviction strategies? Is it justified to distinguish between them and other operators who were able to build essential facilities without having had a legal monopoly in the past? Is it justified to be more demanding in terms of access against former public monopolies than against private companies, or is competition law being used to resolve a problem of competitive neutrality which should have been addressed at the time of liberalisation of the sectors in question? Finally, are exclusivity and refusal of access treated in the same way? There is a negative a priori for refusals of access, a positive a priori for exclusivity. Where do these a priori come from? Are they justified?

Photos © Léo-Paul Ridet.

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