Limiting the Scope of Article 82 of the EC Treaty: What can the EU Learn from the US Supreme Court's Judgment in Trinko in the wake of Microsoft, IMS, and Deutsche Telekom

Abstract:     
This paper seeks to draw some insights from the landmark Supreme Court judgment in Trinko with a view to enlightening the current debate taking place in the EU over the proper scope of application of Article 82. Trinko is a particularly relevant judgment for EC competition lawyers since it addresses two extremely important questions related to the application of this provision of the Treaty. The first question relates to the extent to which dominant firms in possession of essential products or services should be mandated to give access to these inputs to their competitors. This question, which is at the core of the recent Microsoft decision and IMS judgment, does not find an obvious economic response. While granting access to "essential facilities" will stimulate competition in a secondary market (thereby contributing to allocative efficiency), it risks reducing the incentives for essential facility holders to invest. This issue also raises questions about the proper role of the competition authorities and the courts. Mandatory access involves complex price-related questions for which these institutions seem poorly equipped. The second question relates to the interface between competition law and sector-specific remedies. In many key sectors of the economy, which can be referred to as network industries, these two categories of remedy co-exist, thus raising problems of overlap or even conflicts. Trinko addresses this issue by saying that there is no space for competition law remedies once a sector-specific regime has been established. This approach seems to conflict with the Commission's decision in Deutsche Telekom, which rules that the presence of a regulatory remedy does not prevent the application of EC competition rules.

Keywords: Antitrust, competition, Microsoft, monopolies, abuse of dominance, regulation, essential facilities

JEL Classifications: L12, L41, L43, L51

Accepted Paper Series