TRENDS: ARTICLE 82 EC - GUIDELINES - ECONOMIC CRITERIA - PRO-COMPETITIVE PRACTICES - DOMINANT UNDERTAKINGS

The EU guidance on exclusionary abuses: A step forward or a missed opportunity?

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What are the consequences for business of the Commission’s Communication on Article 82 of the Treaty? Does it make the Commission’s action more predictable? Does the use of a wide range of economic criteria reduce the risk that pro-competitive practices by dominant companies will be considered abusive? The articles in this dossier present the views of in-house lawyers, economists, advocates and researchers. The views expressed here are personal to their authors.

PRESENTATION Francesco ROSATI Economist, Partner, Brussels 1. In December 2008, the European Commission issued a communication providing guidance on its enforcement priorities in applying Article 82 EC to exclusionary conduct by dominant firms (hereafter “the Communication”). The Communication is the result of a long elaboration process, as part of which the Commission published a Discussion Paper in December 2005, and held a public consultation process which yielded more than one hundred written comments. 2. The goals that the Commission had set itself when embarking on this project were ambitious and to some extent incompatible. The past approach towards exclusionary conduct, largely based on form-based rules and per se prohibitions, is considered by many excessively restrictive

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Assimakis Komninos, Ioannis Lianos, Francesco Rosati, Philippe Choné, Geoffrey D. Oliver, Florence Ninane, Hendrik Bourgeois, Niamh McCarthy, Johanne Peyre, James Killick, The EU guidance on exclusionary abuses: A step forward or a missed opportunity?, May 2009, Concurrences N° 2-2009, Art. N° 25847, pp. 9-39

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